Mark J. Spalding
Monday, March 13, 2017

I spent the 8th and 9th of March in Puntarenas, Costa Rica for a Central American workshop to develop capacity for foreign ministries engaged in responding to the UN General Assembly (UNGA) Resolution 69/292 request for the negotiation of a new legal instrument to address conservation and sustainable use of biodiversity beyond national jurisdictions (BBNJ) under the UN Convention on the Law of the Sea and help the global community implement the UN Sustainable Development Goals (especially SDG14 on ocean). 

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How about that for a mouthful? Translation: we were helping government folks be ready to negotiate how to protect plants and animals that fall outside the legal control of any nation in the depths and on the surface of the proverbial high seas! Where there be pirates…

At the workshop were representatives of Panama, Honduras, Guatemala, and of course, our host, Costa Rica. In addition to these Central American nations, representatives were there from Mexico and a couple of folks from the Caribbean.

71% of our planet’s surface is ocean, and 64% of that is high seas. Human activities occur in two-dimensional spaces (the sea surface and the seafloor), as well as three-dimensional spaces (the water column and the sub-soil of the seafloor) of the high seas. The UNGA asked for a new legal instrument because we don’t have a single competent authority responsible for the BBNJ areas, no instrument for international cooperation, and no fully articulated way to recognize how to share the BBNJ areas as common heritage for everyone on the planet (not just those who can afford to go and take it). Like the rest of the ocean, the high seas are threatened by well-known and cumulating threats and human pressures. Selected human activities on the high seas (such as fishing or mining or shipping) are managed by specific sectoral organizations. They lack consistent legal regimes or authority, and certainly have no mechanism for cross-sectoral coordination and cooperation.

Our topical speakers, case studies, and roundtable discussions affirmed the challenges and discussed solutions. We spent time talking about marine genetic resources benefit sharing, capacity building, transfer of marine technology, area-based management tools (including marine protected areas beyond national jurisdiction), environmental impact assessments, and cross cutting issues (including credible enforcement, compliance and dispute resolution). Fundamentally, the question is how to allocate the bounty of the high seas (known and unknown) in ways that address a global common heritage. The overarching concept was the need to manage use and activities in a way that was fair today and equitable for future generations.

I was invited there to talk about the Sargasso Sea and how it is being “managed” as an area beyond nation jurisdiction already. The Sargasso Sea lies in the Atlantic, is largely defined by four significant ocean currents that form a gyre within which large mats of sargassum grow. The Sea is home to an array of migratory and other species for part or all of their life cycle. I sit on the Sargasso Sea Commission, and we are proud of the ways we have been forging ahead. 

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We already have done our homework and made our science case regarding the unique biodiversity of the Sargasso Sea. We have evaluated its status, inventoried human activities, stated our conservation objectives, and defined a work-plan to pursue our objectives in our territory. We are already working to gain recognition for our special place with the relevant and competent institutions that deal with fisheries, migratory species, shipping, seabed mining, seafloor cables, and other activities (over 20 such international and sectoral organizations). And now, we are researching and writing our Stewardship Plan for the Sargasso Sea, the first “management plan” for a high seas area. As such, it will cover all sectors and activities in the Sargasso Sea. Furthermore, it will provide a comprehensive framework for the conservation and sustainable use of this iconic ecosystem that entirely lies beyond any national jurisdiction. Admittedly, the Commission has no legal management authority, so we will just be giving direction to our Secretariat, and advice to the signatories of the Hamilton Declaration that established the official Sargasso Sea Area of Collaboration and our commission. It will be the Secretariat and the signatories who will have to convince the international and sectoral organizations to follow these recommendations.

The lessons learned from our case study (and others), as well as underpinning the rationale for the negotiation of a new instrument, are clear. This is not going to be easy. The current system of minimal regulatory structures benefits those with greater technological and financial resources by default. There is also communication, regulatory, and other challenges embedded in our current system. 

To begin with, there are few ‘Competent Authorities’ and little coordination, or even communication among them. The same nation states are represented in many of these international and sectoral organizations. Yet, each organization has its own special treaty requirements for protection measures, process and decision making criteria. 

In addition, sometimes the representatives from any given nation are different at each organization, leading to inconsistent positions and statements. For example, a country’s representative to the IMO and that country’s representative to ICCAT (the tuna and migratory species management body) will be two different people from two different agencies with different directives. And, some nation states are outright resistant to ecosystem and precautionary approaches. Some organizations have the burden of proof wrong—even asking scientists, NGOs, and defending nation states to show that there are negative impacts of fishing or shipping—rather than accepting that the negative impact must be mitigated for the good of all.

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For our case study, or in this new instrument, we are lining up a conflict over the rights to sustainable use of biodiversity. On one side we have biodiversity, the equilibrium of ecosystems, shared benefits and responsibilities, and solving pandemic medical threats. On the other side, we are looking at protecting intellectual property that leads to development of products and profits, whether derived from sovereignty or private property rights. And, add into the mix that some of our human activities in the high seas (especially fishing) already constitute unsustainable exploitation of biodiversity in their current form, and need to be dialed back.

Unfortunately, the nations opposed to a new instrument for managing biodiversity beyond national jurisdictions generally have the resources to take what they want, when they want it: using modern privateers (pirates) backed by their home nations as they were in the 17th, 18th and 19th centuries. Likewise, these nations arrive at negotiations with large, well-prepared, well-resourced delegations with clear objectives that support their individual interests. The rest of the world must stand up and be counted. And, perhaps our modest effort to help other, smaller developing nations become ready will pay dividends.