International Regulation of Areas Beyond National Jurisdiction: Negotiations on a New Legal Structure for the High Seas

Introduction

When the United Nations General Assembly met in Sept. 2018, major U.S. news sources focused their coverage on nonproliferation, trade, peacekeeping and forceful statements by world leaders. Relatively few outlets covered the convening of the first intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Yet that conference was arguably more important than many of the head-of-state speeches dominating the headlines. It marked a first step in formally evaluating how resource rights—mainly fish stocks and marine genetic resources—should be administered, conserved and sustained on the “high seas” that cover half the surface of the globe (and 90 percent of the volume of the oceans). This post is a primer (with links to relevant background documents) for those interested in understanding the current conference sessions and why they are worth watching over the next two years.

Background

When UNCLOS was signed in 1982, it established global consensus on the state of international law regarding a range of maritime issues. Among other things, UNCLOS codified in international law the rule that coastal states could claim a territorial sea with exclusive sovereign rights extending up to 12 nautical miles (nm) from a coastal baseline and an exclusive economic zone (EEZ) extending up to 200 nm from that coastal baseline. Within a sovereign state’s EEZ, the state has exclusive rights to fishing and energy resources.

Since 1982, coastal nations have used UNCLOS to dispute resource claims around the globe—even those countries that have not ratified UNCLOS, like the United States. Hot and cold disputes over resource rights—in the South China Sea, in the Arctic, off the coast of South America, in the Middle East and elsewhere—are all couched in the language of UNCLOS. But the convention only lightly regulates the “high seas,” those parts of the oceans falling outside the maximum 200 nm EEZ limit.

High Seas Fish Stocks

When UNCLOS was negotiated in the 1970s and 1980s, the 200 nm EEZ represented the far range of reasonably viable commercial fishing. In the decades before UNCLOS was signed, many coastal fisheries had collapsed as a result of overfishing. In response, the UNCLOS negotiators enshrined in Article 61 that any coastal state choosing to claim an EEZ would be required to take measures to prevent EEZ overfishing. The idea, broadly, was that assigning legal rights to individual coastal states could provide a solution to the tragedy of the commons.

For the most part, that hasn’t happened. Since 1982, fish stocks that “straddle” or migrate across the 200 nm EEZ line have been overfished on the high seas side of the line, preventing the hoped-for recovery of fisheries inside many countries’ EEZs. A 1995 Straddling Fish Stocks Agreement established a framework for states with adjacent EEZs to coordinate sustainable levels of fish stocks through regional bodies, but implementation has been inconsistent. The overfishing problem has been compounded both by illegal, unreported and unregulated fishing inside various EEZs around the world and by new technologies that make commercial fishing technically possible in the high seas. High seas fishing is conducted primarily by corporations operating out of China, Taiwan, Japan, Indonesia, Spain, the Republic of Korea and the United States. (The economic viability of such fishing absent government subsidies has been questioned.)

As the technology for fishing outside the EEZ has expanded and the limitations of regional bodies have become clearer, some states have called for a coherent international framework to ensure the sustainability of fish stocks in areas beyond national jurisdiction. Pew Charitable Trusts notes that “[b]ecause many [regional fishery management organizations] were established when ocean resources were believed to be virtually unlimited, they often are not structured to limit fishing effectively.”

Deep Sea Bed Marine Genetic Resources

UNCLOS is silent on the second major topic under negotiation by the conference: marine genetic resources (MGR). The precise definition of “marine genetic resources” is under active debate at the current conference, but broadly refers in this context to genetic sequences identified from marine life recently discovered in the deep sea bed. The intellectual property rights in those genetic sequences, and the biochemical compounds they produce, may be patented by private corporations. Deep sea marine life research by a small number of nations—especially the United States, Germany and Japan—has produced thousands of profitable new biochemical discoveries and products derived from MGRs.

MGRs were unknown in 1982. The UNCLOS negotiators believed that the deep sea bed could not sustain life, much less the incredible marine biodiversity that has been discovered there in recent years. They focused instead on mineral resources, and in UNCLOS Part IX declared a “common heritage of mankind” principle governing equitable distribution of mineral resources found on the deep sea bed.

Three decades later, states that lack the technical ability to access MGRs have called for equitable distribution of MGRs, analogizing them to the mineral resources provisions of UNCLOS. States that can access MGRs argue that UNCLOS is silent on MGRs and therefore MGRs may be claimed (and their derivatives patented) by whomever finds them.

The Current Conference

In response to these concerns, the United Nations General Assembly convened the current conference, which will meet over the next two years. All relevant NGOs and member states are invited participants, even those that, like the United States, have not ratified UNCLOS.

There is no proposed draft language yet on the table. Building on 2017’s preparatory report, the conference seeks consensus on draft treaty instrument language for the conservation and sustainable use of marine biological diversity, focusing on four questions:

1. whether and how to use area-based management tools, including internationally-recognized marine protected areas (MPAs), on the high seas to support the recovery and long-term sustainability of the world’s coastal fisheries;
2. whether and how to ensure equitable rights to biochemical materials and products derived or sequenced from deep-sea marine genetic resources (MGRs);
3. how best to conduct environmental impact assessments (EIAs) for high seas activities (particularly those involving fish stocks and MGR discoveries); and
4. how to build capacity for developing nations to participate in ocean resource research and development.

State Positions

The states that have staked out formal positions on the issues before the conference fall into three broad camps. Detailed state submissions from the preparatory committee meetings may be found here.

European Union (EU)

The EU wants to see international and binding MPAs established to stop high seas overfishing and allow for coastal fishery recovery. In this, the EU is supported by a number of prominent NGOs, some of whom hope for an MPA covering the entire high seas. The bloc has stated that access to MGRs should remain free, in line with current UNCLOS provisions concerning marine scientific research in the high seas. At upcoming sessions, the bloc will have to grapple with whether the EU member states whose corporations conduct the bulk of MGR research and development worldwide would be willing to share a greater degree of MGR benefits, either monetary or non-monetary, in order to secure consensus with the G-77 and China on a stronger MPA regime.

The EU is a significant player in these discussions not just because of its strength as a voting bloc at the United Nations, but also because collectively, the EEZs of the EU member states comprise the largest single marine zone in the world. The combined EU EEZ is almost three times as large as the EEZ of the United States (which has the second largest EEZ of any individual state).

G-77 and China

Second, the G-77 and China, joined by overlapping negotiating blocs such as the African Union, the Caribbean Community and the Pacific States, are focused on capacity-building, so that developing nations can conduct their own oceans research and development, and equitable distribution of MGRs under the “common heritage of mankind” principle. The G-77 and China have not embraced the idea of expansive MPAs, but have agreed that MPAs are likewise open for negotiation. Of the three major camps, the members of this bloc have the smallest combined EEZ, but the largest population.

China’s embrace of its leadership role alongside the G-77, despite acknowledged differences in national interests among members of the coalition, is a point to watch. China played a relatively smaller role in the 1973-1982 UNCLOS negotiations. Since 1982, China has raised its profile on maritime issues, building a blue-water navy capable of operating globally, expanding its commercial fishing dramatically around the globe, and clashing with its neighbors over territorial sea and EEZ rights.

Other Developed Coastal States

A group of major developed coastal nations, including the United States, Canada, Russia, Japan, Norway, the Republic of Korea and others, have argued that no additional treaty instrument is necessary to address high seas resource challenges. Although these states do not formally object to the convening of this conference, they have all expressed deep reservations about the “common heritage of mankind” principle, and support existing structures for regulating the high seas.

For example, the United States has generally opposed applying the “common heritage of mankind” concept to deep-sea MGRs, preferred existing institutions and structures for regulating MPAs and EIAs, and supported voluntary efforts assisting capacity-building for developing nations. At the first substantive session, the U.S. reaffirmed its support of existing procedures and domestic law for EIAs, but went no further. Russia has similarly stressed that any new agreement should be strictly limited in scope.

What’s Next?

The conference is scheduled to meet twice in 2019 to work on draft treaty instrument language and aims to deliver draft language to the General Assembly in 2020.

Although some of the initial positions may seem impossible to reconcile, it’s worth remembering that UNCLOS itself took nine years to negotiate, came into being despite long odds and is now one of the key international law frameworks of the world, even without ratification by the United States. Amid headlines about the militarization of rocks and the harassment of fishing vessels and warships, the current sessions are worth watching with a view toward long-term geopolitical trends in resource management.