After many years of effort and growing scientific evidence of unique and vulnerable biological resources, governments have finally agreed to a new high seas treaty on marine biological diversity under the UN Convention on the Law of the Sea. Provisions ensure equitable sharing of benefits with developing countries concerning marine genetic resources, capacity building and transfer of technology. They also provide for marine protected areas and environmental impact assessments of development activities.

On 4 March 2023, delegates at the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) finally approved a new international agreement under the Law of the Sea. This fills a significant gap in governance of the high seas alongside the International Seabed Authority responsible for mineral resources. While the latter is preparing regulations for deep sea mining, representing enormous environmental risks, the new convention will permit protecting the unique life of the water column and ocean bottom. It will also be critical in meeting the goal to protect 30 percent of the ocean recently agreed under the Convention on Biological Diversity.

oceans are increasingly threatened by overfishing, marine pollution, acidification, and now mining of seabed minerals and bioprospecting

There has long been concern over the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. No governments control the 64 percent of the oceans beyond their territorial seas and Exclusive Economic Zones. Scientific research has discovered an amazing diversity of life on seamounts, hydrothermal vents and the ocean bottom, including cold-water corals and sponges, with whole ecosystems with unique genetic resources living independent of energy from the sun. Yet the oceans are increasingly threatened by overfishing, marine pollution, acidification, and now mining of seabed minerals and bioprospecting.

The UN General Assembly, in its resolution 72/249 of 24 December 2017, convened an Intergovernmental Conference (IGC) to negotiate an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of biological diversity beyond national jurisdiction. There was an organizational session in 2018 and four formal sessions up to March 2022. A fifth session under IGC President Rena Lee (Singapore) met in August 2022 to discuss two iterations of draft treaty text, but failed to reach agreement on key issues, so it decided to meet again in a resumed session in 2023. The meeting ran from 20 February to 4 March 2023 at UN Headquarters in New York and went non-stop more than 34 hours into overtime, when President Rena Lee announced “The ship has reached the shore” on an agreed text for a high seas treaty. The text still has to be approved by the UN General Assembly, and then adopted and signed at a date still to be announced. Sixty parties need to ratify it for it to come into force. Until then, the UN Division for Ocean Affairs and Law of the Sea will provide the secretariat.

Key elements of the Treaty

A major aim of the treaty is to ensure that developing countries, and not only wealthy technologically advanced countries, can benefit from this part of the global common heritage.

The main elements of the new treaty are:

• marine genetic resources, including questions on the sharing of benefits;
• measures such as area-based management tools, including marine protected areas;
• environmental impact assessments;
• capacity-building and the transfer of marine technology, as well as cross cutting issues.

Under Marine Genetic Resources, the treaty aims at the fair and equitable sharing of benefits from the use of genetic digital sequence information for pharmaceuticals, cosmetics and biotechnology, with one estimate valuing annual benefits at $6 billion. Such data should be notified and accessible in an open access database including the results of their utilization. Non-monetary benefits include developing country participation in research cruises, while monetary benefits will fund treaty implementation and enforcement.

Area-based management tools including marine protected areas will be proposed by states and approved, if not by consensus, by a three-quarter majority, which is a major improvement over other conventions. Non-parties are not discharged from the obligation to cooperate. Enforcement is a flag state responsibility for monitoring and surveillance. Fisheries activities may require negotiation with regional fisheries management organizations. Existing marine protected areas can be recognized under the treaty. Cooperation with the International Seabed Authority may be required in the event of deep seabed mining.

The provisions for Environmental Impact Assessment (EIA) build on and fill gaps in the Law of the Sea, providing for processes, thresholds and standards. A Scientific and Technical Body will oversee the processes of notification and consultation. EIA reporting and monitoring will be by the states parties responsible for the assessments. There is a clearing house mechanism to provide access to information, and the possibility of adaptive management in response to new science.

The fourth area concerns Capacity Building and Transfer of Technology. This is essential for all states to participate with equity. The treaty defines what is capacity building, why it is important to share benefits and transfer technologies, how this can be done with needs assessments, a clearing house mechanism and funding, and who is responsible for state reporting. There are provisions for a Capacity Building and Technology Transfer Committee, an Implementation and Compliance Committee, and review by the Conferences of the Parties.

Political will matters

The open ocean has the advantage of being beyond the reach of the present paradigm of national sovereignty, but it is still subject to short-term resource exploitation by major economic interests that often win out over environmental necessities and concerns for a longer-term sustainable future. This new High Seas Treaty on Biodiversity Beyond National Jurisdiction is a major step forward in the management of the global commons in the general interest of all humankind. Hopefully it will be a model for needed legislation covering other areas of our planetary common heritage in the interests of present and future generations. It is encouraging to see that multilateral international cooperation is still possible when the science is clear and there is political will.