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Marine biological diversity beyond areas of national jurisdictionUpdated I. Background (a) World Summit on Sustainable Development (b) Work of the General Assembly, including the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (Consultative Process)and the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (Working Group)
Marine biological diversity beyond areas of national jurisdiction I. Background Biodiversity is the variability among living organisms from all sources including, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems (Convention on Biological Diversity, article 2). The diversity among biological resources, which include genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity, makes up biodiversity. In recent years, the international community has become increasingly aware of the range of services provided by marine ecosystems and of the rich biodiversity of pelagic and benthic ecosystems beyond the limits of national jurisdiction. Marine areas beyond national jurisdiction comprise the high seas and the Area. The United Nations Convention on the Law of the Sea (UNCLOS) defines the high seas as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State” (article 86). The Area is defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (article 1). Marine ecosystems are essential to a healthy environment and also contribute significantly to human well-being. At the same time, concerns regarding the impacts posed by human activities to those ecosystems, in particular to biodiversity beyond areas of national jurisdiction, have led to closer examination of conservation and management arrangements for biodiversity in those areas. Scientific aspects For a long time, the deep oceans were thought to be a desert in terms of species diversity. It was once believed that sources of productivity in these environments were limited to material sinking from above, since no other source of energy and carbon was known. In 1977, however, scientists on board of the submersible Alvin discovered sites near the Galapagos Islands where high-temperature fluids rich in reduced compounds pour out into the water column and which are host to unique seabed, or benthic, ecosystems. Later research led to the discovery of other benthic ecosystems characterized by energy sources other than light, such as sediment communities and seep communities. Other discoveries brought to light a wealth of different benthic habitats and biodiversity hot spots in the deep oceans, including seamounts and cold and deep water corals. Pelagic environments, which are found in the water column, are also host to a wide range of micro- and macro-organisms. Very little is known about most of these habitats and species. While an increasing amount of research is being carried out, much more still remains to be studied. Further information on pelagic and benthic ecosystems and their associated micro- and macro- fauna can be found in the Secretary-General’s reports A/60/63/Add.1 (paragraphs 12-57) and A/62/66/Add.2 (paragraphs 190-204). Technological aspects While the oceans cover two thirds of the planet, it is estimated that the vast majority are yet to be explored. Access to marine ecosystems beyond areas of national jurisdiction, in particular to benthic and deep pelagic ecosystems, is dependent on highly specialized technology relating to vessels, equipment, techniques for sampling and analysis, appropriate infrastructure, highly trained personnel and adequate financial resources. Although marine technology has advanced considerably in recent years and new technologies are constantly being developed, thereby providing us with opportunities to increase our knowledge and use of previously inaccessible ecosystems, it still presents limitations and challenges for research, as well as for exploitation of marine living resources and monitoring, control and surveillance (MCS). For example, highly specialized technology is required for the preservation, analysis and exploitation of deep sea micro-organisms. Also, the development of some fishing technologies have raised concerns with regard to destructive fishing practices, including the impacts of some fishing gear on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals. The development of environmentally sound technology to carry out research and explore and exploit marine resources requires therefore particular attention. Further information on technological aspects for research and exploitation can be found in the Secretary-General’s reports A/60/63/Add.1 (paragraphs 58-97), A/61/154 (paragraphs 5-56), and A/62/66/Add.2 (paragraphs 205-208 and 243-248).
Economic aspects Biological resources beyond areas of national jurisdiction are resources shared by all States and, as such, are part of the “global commons”. Because no single State or individual has any property rights over those resources, access to them is open to everyone with the consequence that there is limited incentive to conserve and sustainably manage those resources as maximization of individual profit is the main driver for exploitation. This may result in exploitation to the point where no further surplus value can be derived from them (e.g., depletion of fish stocks) and biodiversity is lost. In addition, since ecosystem goods and services are not traded in formal markets, they do not send price signals that warn of changes in their supply or condition, nor are people conscious of the role that ecosystem services play in generating those ecosystem goods that are traded in the marketplace. Thus, even if biodiversity is of great importance to society; this is not reflected in the marketplace. Calculating the total economic value of ecological goods and services in order to assign them a “market value” is a difficult task. This is particularly true with regard to marine biodiversity beyond areas of national jurisdiction as a result of limited information available on the direct and indirect values of those ecosystems and on activities currently taking place in their regard. The commercial value or direct use value of ecosystem goods and services can be calculated to a certain extent by looking at the main commercial activities relating to biological resources currently being carried out in areas beyond national jurisdiction, such as fishing and bioprospecting. Further information on economic aspects can be found in the reports of the Secretary General A/60/63/Add.1 (paragraphs 98-118) and A/62/66/Add.2 (paragraphs 209-222).
Socio-economic aspects Marine ecosystems provide a range of services essential to a healthy environment, but also contribute significantly to human well-being. It is estimated that marine biological diversity, including beyond areas of national jurisdiction, produces a third of the oxygen that we breathe and has a role in moderating global climate. It is also valuable as a source of protein for human consumption as well as for the development of other products, including pharmaceuticals, and as a source of leisure and recreation, research and education, and aesthetics. The conservation and sustainable use of marine biodiversity also provides a source of employment and livelihood to thousands of people worldwide. Further information on socio-economic aspects can be found in the reports of the Secretary General A/60/63/Add.1 (paragraphs 119-127) and A/62/66/Add.2 (paragraphs 209-222). Environmental aspects Available evidence indicates that marine biodiversity is under growing pressure from different types of human activities. These include destructive fishing practices such as illegal, unreported and unregulated (IUU) fishing, over-fishing, by-catch, and the use of destructive gear in vulnerable marine ecosystems; pollution from all sources, including from shipping, the introduction of invasive alien species and anthropogenic under water noise; mineral exploitation; marine scientific research; and human-induced climate change. As a result of these unprecedented pressures, we are witnessing the degradation of marine habitats, the over-exploitation of biological resources and increasing loss of biological diversity. New uses of the oceans such as climate change mitigation measures (e.g., iron fertilization and carbon sequestration) and research on marine genetic resources are also raising concerns. As a global common, marine biodiversity beyond areas of national jurisdiction is more particularly vulnerable to such pressures. Further information on environmental aspects can be found in the reports of the Secretary General A/60/63/Add.1 (paragraphs 128-175) and A/62/66/Add.2 (paragraphs 8-64 and 223-231).
Legal aspects The United Nations Convention on the Law of the Sea (UNCLOS) provides the legal framework within which all activities in the oceans and seas must be carried out. In addition to UNCLOS and its implementing agreements, namely the Agreement relating to Part XI of UNCLOS, and the Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, a number of international instruments at the global and regional levels are relevant to marine biodiversity beyond areas of national jurisdiction. These include regional and global instruments related to biodiversity, fisheries, point and non-point sources of pollution, trade and intellectual property. In addition, non-binding instruments also provide policy guidance of relevance to marine biodiversity beyond areas of national jurisdiction. In recent years, however, questions have been raised as to whether there is a governance regulatory gap. Further information on legal aspects can be found in the reports of the Secretary General A/60/63/Add.1 (paragraphs 176-225) and A/62/66/Add.2 (paragraphs 232-242 and 249-325).
A growing number of international fora are considering issues related to marine biodiversity, both within and beyond areas of national jurisdiction. World Summit on Sustainable Development In 2002, the World Summit on Sustainable Development adopted the Johannesburg Declaration on Sustainable Development, in which States noted the continuing loss of biodiversity and resolved to protect it, through commitments on targets, timelines and partnerships (Johannesburg Declaration, paragraphs 13 and 18). Paragraphs 30 to 32 of the Johannesburg Plan of Implementation (JPOI) encourages the use of diverse approaches and tools for the conservation and sustainable use of marine biodiversity, including: - the application of an ecosystem approach by 2010, - the elimination of destructive fishing practices, - the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods and the integration of marine and coastal areas management into key sectors, and - the development of national, regional and international programmes for halting the loss of marine biodiversity. In addition, the JPOI indicates that in order to achieve sustainable fisheries, a number of measures should be implemented (paragraph 31 (a) to (f)). These include: - maintaining stocks and restoring depleted stocks to levels that can produce the MSY by 2015, - implementing relevant international fisheries instruments, - giving due consideration to the special requirements of developing States in respect of allocations of fishing rights in RFMOs, - eliminating harmful subsidies in the fishing industry as well as destructive fishing practices, and - establishing effective monitoring, control and surveillance and enforcement of international conservation and management measures.
Work of the United Nations General Assembly In recent years the United Nations General Assembly, including the Consultative Process and the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, has addressed several issues relevant to the conservation and sustainable use of marine biodiversity, high seas fisheries governance, the protection of vulnerable marine ecosystems and habitats, including those located in areas beyond national jurisdiction, as well as marine genetic resources. As a result, several General Assembly resolutions on oceans and the law of the sea and on sustainable fisheries provide relevant policy guidance. 2000 – Fifty-fifth session of the General Assembly and first meeting of the Consultative Process, which focused its discussion on “Responsible fisheries and illegal, unreported and unregulated fisheries: moving from principles to implementation” and “Economic and social impacts of marine pollution and degradation, especially in coastal areas”; 2001 – Fifty-sixth session of the General Assembly and second meeting of the Consultative Process, of which the area of focus included “Marine science and the development and transfer of marine technology, as mutually agreed, including capacity-building”; 2002 - Fifty-seventh session of the General Assembly and third meeting of the Consultative Process, of which the area of focus included the “Protection and preservation of the marine environment”, and “Capacity-building, regional cooperation and coordination and integrated ocean management, as important cross-cutting issues to address ocean affairs, such as marine science and the transfer of technology, sustainable fisheries, the degradation of the marine environment and the safety of navigation”; 2003 - Fifty-eighth session of the General Assembly and fourth meeting of the Consultative Process, of which the area of focus included “Protecting vulnerable marine ecosystems”; 2004 – Fifty-ninth session of the General Assembly and fifth meeting of the Consultative Process, which addressed the issue of “New Sustainable Uses of the Oceans, including the Conservation and Management of the Biological Diversity of the Seabed in Areas beyond National Jurisdiction”; 2005 – Sixtieth session of the General Assembly and sixth meeting of the Consultative Process, which addressed the issue of “Fisheries and their contribution to sustainable development”; 2006 – Sixty-first session of the General Assembly and seventh meeting of the Consultative Process, which addressed the issue of “Ecosystem approaches and oceans”; and first meeting of the Working Group on the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction; 2007 - Sixty-second session of the General Assembly and eight meeting of the Consultative Process, which addressed the issue of “Marine genetic resources”;
Summary of the most relevant developments On the basis of the recommendations of the third meeting of the Consultative Process, which focused its discussions on the protection and preservation of the marine environment, and capacity-building, regional cooperation and coordination and integrated ocean management as important cross-cutting issues to address ocean affairs, such as marine science and the transfer of technology, sustainable fisheries, the degradation of the marine environment and the safety of navigation (A/57/80), and of the JPOI, in 2002, the General Assembly (resolution 57/141) called upon States to: - develop national, regional and international programmes for halting the loss of marine biodiversity, in particular fragile ecosystems (paragraph 51), and - develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods, proper coastal and land use and watershed planning, and the integration of marine and coastal areas management into key sectors (paragraph 53). The call was reiterated in resolutions 58/240, 59/24, 60/30, 61/222 and 62/215. The General Assembly also encouraged States and relevant international organizations to urgently consider ways to integrate and improve, on a scientific basis, the management of risks to marine biodiversity of seamounts and certain other underwater features within the framework of UNCLOS (resolution 57/141, paragraph 56). The call was reiterated in resolutions 58/240 and 59/24 (paragraph 68 of which broadened the call also to States and included cold water corals and hydrothermal vents as ecosystems of concern). Upon recommendation of the fourth meeting of the Consultative Process in 2003 (report A/58/95), which focused on protecting vulnerable marine ecosystems, the General Assembly called upon States to improve the scientific understanding and assessment of marine and coastal ecosystems as a fundamental basis for sound decision-making through the actions identified in the Johannesburg Plan of Implementation (paragraph 49 of resolution 58/240). It also invited the relevant global and regional bodies, in accordance with their mandates, to urgently investigate how to better address, on a scientific basis, including the application of precaution, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction; how existing treaties and other relevant instruments could be used in this process consistent with international law, in particular with UNCLOS, and with the principles of an integrated ecosystem-based approach to management, including the identification of those marine ecosystem types that warrant priority attention; and to explore a range of potential approaches and tools for their protection and management. In response to a request in that resolution, the Secretary-General prepared an addendum to his annual report to the General Assembly at its fifty-ninth session, which describes the threats and risks to such marine ecosystems and biodiversity in areas beyond national jurisdiction as well as details on any conservation and management measures in place at the global, regional, subregional or national levels addressing these issues (paragraph 52). The report was issued as document A/59/62/Add.1. With particular reference to high seas fisheries governance, the General Assembly has adopted, in recent years, several resolutions which have requested States and regional fisheries management organizations and arrangements (RFMO/As) to demonstrate responsible fisheries in the marine ecosystem. In resolution 58/14, the General Assembly requested the Secretary-General, in his report on sustainable fisheries to its 59th session, to include a section outlining current risks to the marine biodiversity of vulnerable marine ecosystems including, but not limited to, seamounts, coral reefs, including cold-water reefs and certain other sensitive underwater features, related to fishing activities, as well as detailing any conservation and management measures in place at the global, regional, subregional or national levels addressing these issues (documents A/59/298 and A/59/62/Add.1). In 2004, the fifth meeting of the Consultative Process organized its discussions around the topic new sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction (report A/59/122). In reviewing the outcome of that meeting, the General Assembly, in resolution 59/24, reiterated its concern at the adverse impacts on the marine environment and biodiversity, in particular on vulnerable marine ecosystems, of human activities, such as over-utilization of living marine resources, the use of destructive practices, physical impacts by ships, the introduction of alien invasive species and marine pollution from all sources, including from land-based sources and vessels, in particular through the illegal release of oil and other harmful substances and from dumping, including the dumping of hazardous waste such as radioactive materials, nuclear waste and dangerous chemicals (preambular paragraphs). It called upon States and international organizations to urgently take action to address, in accordance with international law, destructive practices that have adverse impacts on marine biodiversity and ecosystems, including seamounts, hydrothermal vents and cold water corals (paragraphs 69-70). Furthermore, the General Assembly decided to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (Working Group) (paragraphs 73-74). The first meeting of the Working Group, which was held in New York from 13 to 17 February 2006, recognized the primary role of the General Assembly in addressing the issues discussed by the meeting and the essential complementary role of other organizations, processes and agreements within their respective competence. The meeting also reiterated that UNCLOS sets out the legal framework within which all activities in the oceans and seas must be carried out, while a number of other conventions and instruments complement it and that, together, they provide the current framework in this area. The need to implement the precautionary and ecosystem approaches using the best available science, and prior environmental impact assessments was recognized, as was the need to address destructive fishing practices and illegal, unreported and unregulated fishing and the importance of area-based management tools, such as marine protected areas. The need to study and determine whether there is a governance gap in marine areas beyond national jurisdiction and to further discuss the legal status of marine biological diversity in areas beyond national jurisdiction, including genetic resources, was noted. Enhancing coordination and cooperation within and among all relevant actors was considered important, along with further marine scientific research in these areas and the sharing of knowledge from research programmes. Broad support was expressed for continuing the ongoing process of discussions under the auspices of the General Assembly. A list of studies to be undertaken, as suggested by delegations, on issues related to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction was compiled and is contained in the report of the meeting (report A/61/65). In 2004 the General Assembly also adopted resolution 59/25 on sustainable fisheries, which established an interim prohibition of destructive fishing practices, including bottom trawling that has adverse impacts on vulnerable marine ecosystems, including those located in areas beyond national jurisdiction, until such time as appropriate conservation and management measures have been adopted (paragraph 66). The resolution called upon RFMOs with the competence to regulate bottom fisheries to adopt conservation and management measures that would address the adverse impacts of bottom trawling on vulnerable marine ecosystems (paragraph 67), and for those which do not have the competence to regulate bottom fisheries, to expand their competence to do so (paragraph 68). It also invited States to establish new RFMOs with the competence to regulate bottom fisheries in areas where no such organizations exist (paragraph 69). Fisheries and their contribution to sustainable development and ecosystem approaches and oceans were discussed by the sixth (report A/60/99) and seventh (report A/61/156) meetings of the Consultative Process, in 2005 and 2006 respectively. The outcomes of those meetings as well as the relevant paragraphs in General Assembly resolutions 60/30 and 61/222 are also pertinent to discussions relating to marine biodiversity beyond areas of national jurisdiction. Furthermore, in resolution 61/105 on sustainable fisheries, the General Assembly called upon flag States with respect to unregulated high seas areas and competent RFMOs with respect to their respective regulatory areas, to regulate bottom fisheries and implement measures, in application of the precautionary approach, ecosystem approaches and international law, no later than 31 December 2008, to address the impacts of fishing in areas where there are vulnerable marine ecosystems. If a flag State declines to implement the above measures for high seas areas where there is no RFMO/A competent to regulate bottom fisheries or where no interim measures have been adopted pending the establishment of a competent RFMO, such State should cease to authorize vessels flying its flag to conduct bottom fisheries in those areas (paragraph 86). In addition, the General Assembly requested flag States to make publicly available through the FAO a list of vessels flying their flag authorized to conduct bottom fisheries in areas beyond national jurisdiction and the measures they have adopted concerning the activities of such vessels (paragraph 87). In addition, States participating in negotiations to establish new RFMOs competent to regulate bottom fisheries are invited to complete their negotiations by 31 December 2007, and to adopt interim measures, which should be made publicly available (paragraph 85). The General Assembly will review the measures taken by States and RFMOs under resolution 61/105 to regulate high seas bottom fisheries and protect vulnerable marine ecosystems at its sixty-fourth session in 2009. The issue of marine genetic resources has been the subject of discussions at the eighth meeting of the Consultative Process in 2007 (report A/62/169). Different views have been expressed on what should be the legal regime of marine genetic resources in areas beyond national jurisdiction. Other issues that have been raised in that regard include: the relationship between marine scientific research and bioprospecting, legal aspects related to access and benefit-sharing, international cooperation in marine scientific research through the exchange, sharing and dissemination of information, the role of intellectual property rights, cooperation in technology transfer, and the protection of the marine environment. The General Assembly in resolution 62/215 recognized the abundance and diversity of marine genetic resources and their value in terms of benefits, goods and services they can provide, as well as the importance of research on marine genetic resources for the purpose of enhancing scientific understanding, potential use and application, and enhanced management of marine ecosystems. It encouraged States and international organizations, including through bilateral, regional and global cooperation programmes and partnerships, to continue in a sustainable and comprehensive way to support, promote and strengthen capacity-building activities in particular in developing countries, in the field of marine scientific research, in particular, taking into account the need to create greater taxonomic capabilities (paragraphs 134-136). All these issues will be further discussed at the second meeting of the Working Group. UN-Oceans Task Force on marine biodiversity beyond national jurisdiction and work of other relevant organizations and bodies UN-Oceans is a mechanism established to enhance cooperation and coordination among Secretariats of the International organizations and bodies within the United Nations system which are concerned with ocean-related activities. It operates through ad hoc task forces aimed at fostering collaboration in respect of existing activities and developing collaboration and cooperation in respect of new and emerging activities on a number of specific issues identified by its members. The Task Force on marine biodiversity beyond national jurisdiction was established at the first Inter-Agency Meeting of UN-Oceans (25-26 January 2005, UNESCO-IOC, Paris, France) to coordinate information input to the General Assembly, the Convention on Biological Diversity, and other international processes dealing with biodiversity in marine areas beyond national jurisdiction. The expected outputs of this task force are:
Links to relevant United Nations organizations, programmes and funds Food and Agriculture Organization of the United Nations (FAO) International Maritime Organization (IMO)
International Seabed Authority (ISA) Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) United Nations Conference on Trade and Development
United Nations Environment Programme (UNEP)
UNESCO Intergovernmental Oceanographic Commission United Nations University Institute of Advanced Studies (UNU-IAS)
World Intellectual Property Organization
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