The conundrum: conserving biodiversity in Areas Beyond National Jurisdiction

So much of human outlook on life is from a land-based perspective. On land, we have developed rules for everything built up over millennia of learning how to get along with our neighbours. At sea, we only have a few centuries of experience in developing rules which, Alistair Graham observes, seem to be more about maintaining traditional freedoms than being mindful of others’ interests. This article originally appeared in The Circle 02.16.

A Coast Guard MH-60 Jayhawk helicopter from U.S. Coast Guard Air Station Kodiak is pictured flying over the fishing vessel Bering Star Oct. 20, 2008, in the Bering Sea during the red king crab season. The crew of the Jayhawk was patrolling in support of operation “Arctic Safeguard”, which enhances the Coast Guard’s search and rescue and law enforcement posture in the Bering Sea and Aleutian Islands during the fall fishing season.

Photo by AMT3 Blaize Potts, USCG Air Station Kodiak

Conservationists need to appreciate two big picture realities regarding Biodiversity Beyond National Jurisdiction (BBNJ): one, it takes a long time to change the rules of the maritime game and the current rules purposefully favour freedoms and two, maintaining unimpeded maritime trade is overwhelmingly important. States are jealously protective of their sovereignty – the right to do what they like within their own territory and jurisdiction constrained only by their own laws.

The centuries of maritime rules development are manifest in UNCLOS – the United Nations Convention on the Law of the Sea – often referred to as the constitution for the oceans to emphasise its importance and reluctance to change it. UNCLOS is the third iteration of the law of the sea in recent decades but still owes much to the seminal work of Dutch lawyer, Hugo Grotius, ‘Mare Liberum’ – where he expounds the principle of ‘free seas’ or ’unrestricted access.’ That was published in 1609 proving maritime norms really do evolve very slowly.

These freedoms are maintained by mutual respect for flag state responsibility. UNCLOS gives every state the right to operate a vessel registry and to allow registered vessels to fly its flag. Flagged vessels are deemed to be nationals of that state in the same way that people become nationals when registered as citizens and businesses become nationals when registered as companies.

This is how activities in Areas Beyond National Jurisdiction (ABNJ) are controlled – by extending state jurisdiction over its nationals to vessels even when beyond national jurisdiction. States are then responsible to each other by virtue of having signed on to UNCLOS and other international agreements to abide by the obligations set out in the provisions of those agreements. But everyone understands that conflict will ensue if anyone tries usurping flag state responsibility by taking matters into their own hands and, uninvited, exercising control of others’ nationals. That’s why ‘piracy’ has such a bad ring to it. The merchant shipping industry has long dealt with this reality by adopting port state controls. Because ports are within national jurisdiction, states can force operators of vessels to behave by making access to their ports conditional upon their doing so.

These are the ‘big picture’ notions we have to keep in mind as we contemplate conservation issues in the vast marine areas beyond national jurisdiction. We now have an opportunity to influence negotiation of a new binding agreement under UNCLOS on the conservation and sustainable use of living things in these international seas. We just need to be smart about knowing when, where and how to push. Now is a good time because of the United Nations Conference on Environment and Development. The United Nations is a good place for these negotiations because ABNJ is a global issue and an UNCLOS implementing agreement is a good vehicle for our conservation ambitions.

Cooperation between states in ABNJ habitually takes the form of setting up sectoral bodies which then make decisions, generally by consensus, for the orderly development of that sector. The International Whaling commission was set up to do this in 1946 although, not foreseeing conflict to come, the whalers set up an open access body that decided by simple voting – something they bitterly regretted in later years. The merchant shippers were far more prudent in establishing IMO, the International Maritime Organisation, in 1948 with voting power of member states linked to the size of the fleets flying their flags and a tradition of consensus decisionmaking. The miners ensured that there was a whole part of UNCLOS that created the International Seabed Authority, to actually regulate mining in ABNJ and to ensure that exclusive mineral rights could be issued.

Meanwhile, fishing interests had been negotiating international agreements as and when regional circumstances warranted it, starting with the US/Canada Halibut Commission in 1923. These were typically limited-membership, regional arrangements among states with a ‘real interest’ i.e., commercial fishing of particular fish stocks in a region, generally making decisions by consensus as much as possible.

UNCLOS, however, gives all states the equal ‘freedom to fish’ in ABNJ thus challenging the legitimacy of limited, ‘real interest’ membership Regional Fisheries Management Organisations (RFMOs). To fix this legitimacy problem, fishing interests negotiated an UNCLOS implementing agreement – the UN Fish Stocks Agreement which was adopted in 1995 and entered into force in 2001. This agreement explicitly legitimises RFMOs but needs widespread, if not universal ratification before legitimacy is effectively achieved. This is proving hard to achieve as some countries, especially Latin American countries and Argentina in particular, object to being expected to legitimise a restricted membership body that gives members privileged access to fish resources in ABNJ in breach of the UNCLOS freedom to fish provisions.

As ice recedes, controlling activities in the Arctic is becoming more of an issue. The most immediate ABNJ issue to deal with is merchant shipping. Most of the Arctic is ABNJ for merchant shipping because the limit of states’ national jurisdiction is the limit of territorial waters, only 12 nautical miles from the coast. Receding ice means that major all-year-round shipping routes will open up within decades, significantly cutting transit times between major destinations. Arctic states need to decide whether they’re prepared to see these routes controlled vicariously by controls exercised by non-Arctic port authorities at either end of these shipping routes or whether they want a special agreement that has them more in control. Meanwhile, oil and gas exploitation will be an Exclusive Economic Zone issue for a long while yet.

Fisheries, however, warrant some immediate attention and, in July last year, Arctic coastal states signed a Declaration wherein they voluntarily agree not to fish in the high Arctic ABNJ other than in compliance with RFMO measures. To be useful, however, that Declaration will need to be converted into a binding agreement that any state can sign up to so that no state’s vessels, or other nationals, go fishing in the Arctic unless and until appropriate RFMO management arrangements are in place. In effect, there is a moratorium in place but all states with an interest in high Arctic ABNJ fishing will need to join that binding agreement if the intended restraint is to be effective.

The important point here is that those wanting effective control of activities in Arctic ABNJ don’t need to wait for any international agreement to legitimise their efforts. They just need to ensure that any regional agreements they negotiate are open to participation by all states and then use diplomatic efforts to ensure that all relevant states sign up.

Alistair Graham is an adviser for WWF International on oceans governance reform.