The agreement reached by UN delegates on a Draft High Seas Treaty on 4 March 2023 has been widely celebrated as a historic achivement to protect the ocean. This post considers it in light of the objective to conserve biological diversity that is one of the treaty’s main goals and underpins the entire UN biodiversity framework. The post starts by outlining the legal regime applicable in the high seas and identifying one of the major threats faced by marine life and ecosystems. It then assesses whether the instrument designated by the treaty to ensure the conservation of marine biological diversity – ie marine protected areas – appears adequate for this purpose.

The UN biodiversity architecture

Since the adoption of the Rio Convention on Biological Diversity in 1992, its Conference of Parties has adopted a new ‘strategic plan’ decennially to measure progress on the protection of biodiversity and set new global targets. With each successive instrument, the language has grown more urgent regarding the accelerating rate of biodiversity loss, and more assertive about the need for strong and sweeping measures to prevent irreparable damages to the natural world.

Hence the last of these agreements adopted on 19 December 2022  – the Kunming-Montreal Biodiversity Framework – declares that ‘biodiversity is deteriorating worldwide at rates unprecedented in human history.’[1] It underlines that this ecological decline is threatening around a million species of plants and animals with extinction as the ongoing destruction of nature brings about biological evolutionary changes.[2] The Kunming-Montreal agreement importantly acknowledges that the collapse of biological diversity is predominantly caused by humans, resulting in large part from the overexploitation of animals, plants and living organisms, primarily via harvesting, logging, hunting and fishing.[3]

In its last global assessment report of 2019, the Intergovernmental Platform on Biodiversity and Ecosytem Services (IPBES) stressed that nothing but transformative change – described as fundamental, structural change – can bring the human-driven degradation of the natural world to a halt.[4] However, pursuant to current projections, human pressure on nature will continue or worsen in many future scenarios.[5]

In the Kunming-Montreal agreement, the international community responded to the IPBES report by committing ‘to bring about a transformation in our societies’ relationship with biodiversity’ and halt biodiversity loss by 2030.[6] For this purpose, world nations have agreed on 23 targets building on the 20 Aichi targets agreed in 2011.[7] The most well known of them, the ‘30 by 30’ pledge, refers to a commitment to protect at least 30% of the world’s terrestrial and marine areas by 2030.[8] This expands the preceding goal to conserve 17% of terrestrial areas and 10% of marine areas by 2020, one of the only four Aichi targets towards which good progress was achieved in the last decade.[9]  

One significant step towards the realisation of the 30 by 30 target in marine areas was taken on March 4 when, following intense and protracted negotiations, a UN Intergovernmental Conference adopted a Draft agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, colloquially known as ‘the High Seas Treaty’ (the treaty).[10]

The general objective of the treaty as stated in its article 2 is ‘to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’.[11] For this purpose, it encourages states to ‘establish a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas’ in the high seas.[12] It also requires the conduct of environmental impact assessments for certain activities undertaken in the ocean and establishes the principle of fair and equitable sharing of benefits obtained from marine genetic resources, as discussed here.[13]

A tragedy of the commons

The ocean lying beyond the 200 nautical mile limit of national jurisdictions in the sea, representing about 60% of the global ocean, is the largest unappropriated area of the world. While coastal states have the exclusive right to exploit marine resources in their sovereign seas, known as their ‘exclusive economic zones’, the high seas are open to all states.[14] The doctrine of the freedom of the high seas enshrined in the UN Convention on the Law of the Sea (UNCLOS) has given rise to a phenomenon called the ‘tragedy of the commons’, referring to situations where shared resources are depleted as private actors pursue their self-interest at the expense of the common good.[15]

The freedom of the nationals of all states to fish on the high seas is probably the most problematic when it comes to the protection marine biodiversity.[16] Pursuant to the UNCLOS, this freedom is subject to the duty of states to ensure the conservation of the living resources of the high seas, including an obligation to cooperate with other states for this purpose.[17] This duty has given rise to the creation of regional fisheries management organisations tasked to regulate fishing and set quotas for fish stocks to ensure their conservation and sustainable use.[18] According to article 119 of the UNCLOS, fishing quotas and other conservation measures in the high seas should be determined on the basis of the following criteria:

  • the harvested species should be maintained or restored ‘at levels which can produce the maximum sustainable yield’;
  • species associated with or dependent on the target stocks should be maintained or restored ‘above levels at which their reproduction may become seriously threatened.’[19]

The pursuit of the maximum sustainable yield in fisheries management has accompanied the development of intensive fishing practices and, in many cases, the overexploitation of marine life. As coastal fish populations became depleted and following the sophistication of fishing gears and techniques in the second half of the twentieth century, the industry was expanded into the high seas.[20] This, in turn, resulted in the degradation of oceanic ecosystems and a dramatic decline in marine wildlife.[21] Indeed, according to marine biologists, ‘humans have already powerfully changed virtually all major marine ecosystems.’[22]

Fishing on the high seas occurs on a very large scale. A study published in 2018 by Global Fishing Watch revealed that ‘industrial fishing occurs in over 55% of ocean area and has a spatial extent more than four times that of agriculture.’[23] According to the 2019 IPBES report, fishing is the most important driver of biodiversity decline in marine ecosystems.[24] The severe impact of the industry is attested by the global decline in the health of fish stocks, with an increasing proportion overfished (36% in 2019), the largest proportion fished at the limit of sustainability (57%) and a negligible proportion fished sustainably (7%).[25]

The High Seas Treaty and marine protected areas

The scientific community has explored different policy options to preserve marine life and ecosystems in the high seas. In terms of transformative change, one solution put forward by leading marine biologists would entail completely closing the high seas to fishing.[26] According to one study relying on empirical fisheries data, this would not lead to losses in global fish catches due to an increase in fish spillover from the closed high seas into the exclusive economic zones.[27] A different study similarly found that ‘completely closing the high seas to fishing would simultaneously give rise to large gains in fisheries profit (>100%), fisheries yields (>30%), and fish stock conservation (>150%).’[28]

A less comprehensive but still consequential change would involve protecting a large share of the high seas through no-take marine reserves, ie areas where fishing and other extractive activities are prohibited. There is extensive scientific evidence showing that large and well-enforced marine reserves are successful in restoring the richness and integrity of marine ecosystems, and preserving them in the long term.[29] However, only a small fraction of marine protected areas worldwide can be qualified as marine reserves. Significantly, less than 3% of the ocean is fully or highly protected from fishing impact.

The draft High Seas Treaty does not mention marine reserves. The third part of the agreement focusing on conservation is entitled: ‘measures such as area-based management tools, including marine protected areas’.[30] As defined in article 1 of the treaty, area-based management tools relate to the management of one or several sectors or activities for conservation and sustainable use objectives, whereas marine protected areas (MPAs) are ‘managed to achieve specific long-term biodiversity conservation objectives’.[31] While MPAs should thus prioritise conservation over sustainable use, pursuant to the treaty extractive activities may be allowed in these areas provided they are consistent with the conservation objectives. [32]

According to the International Union for the Conservation of Nature (IUCN), area-based management tools are ‘regulations of human activity in a specified area to achieve conservation or sustainable resource management objectives’.[33] Although they may have beneficial conservation effects, the primary goal of these management tools generally relate to the needs of the sector(s) they aim to regulate such as, in the context of the high seas, fishing, shipping and mining.[34] Area-based management tools in the high seas tend to overlap with fisheries management tools, whose primary focus is to maintain fish stocks.[35] They include seasonal fishery closures, gear and vessel restrictions.

According to the IUCN, marine protected areas should have conservation as a primary objective. However, as highlighted in scientific studies, MPAs have very different protection status ranging from no-take marine reserves, to minimally protected MPAs allowing commercial fishing and other extractive activities such as anchoring, aquaculture, dredging and dumping.[36] The vast majority of MPAs are only lightly protected and allow fishing – 94% according to one study.[37]

In theory, certain activities are always prohibited within MPAs. The IUCN thus makes clear that:

Any industrial activities and infrastructural developments (e.g. mining, industrial fishing, oil and gas extraction) are not compatible with MPAs and should be excluded from such areas if they are to be considered as MPAs.[38]

However, extractive activities with severe impact on marine life have been found to occur in many MPAs worldwide.[39] For instance, a 2019 study found that commercial trawling occurred in 59% of European MPAs and at higher levels than in non-protected areas.[40]

By contrast with marine reserves, there is no clear evidence that minimally protected MPAs achieve conservation goals.[41] And while states are engaged in a ‘race to designate’ more MPAs to achieve international targets, concerns have been raised by the scientific community that the term may have become meaningless.[42]

This may be illustrated by the poor conservation status of European MPAs. While the EU has significantly expanded its MPA network over the last decade, now covering over 10% of its waters, this has not halted the decline of marine biodiversity.[43] According to a 2019 report of the European Environment Agency, marine biodiversity ‘remains under threat in Europe’s seas’ with a high proportion of species and habitats in ‘degraded’ status.’[44] This report reveals that European MPAs are more affected by commercial fisheries than non-protected areas and that less than 1% of them qualify as marine reserves.[45] These findings brought the Agency to ‘question the true benefit of the EU MPA network for marine biodiversity.’[46] Similarly, a 2020 report of the European Court of Auditors found that EU protection rules have not led to the recovery of significant marine ecosystems and habitats and that the network of MPAs in Europe’s seas provides limited protection.[47]

In this context, it seems unfortunate that the High Seas Treaty fails to set a higher standard of protection for marine protected areas. By placing them on the same level as area-based management tools, traditionally geared towards (sustainable) extraction, the treaty does not displace the dominant emphasis on the exploitation of living organisms that is at the root of the current biodiversity crisis. Moreover, the treaty’s definition of marine protected areas is so wide as to include minimally protected MPAs allowing extensive fishing and extractive activities although it is not clear that they achieve conservation objectives.[48]

Conclusion

The reaching of an agreement among world nations on a draft High Seas Treaty should be commended for instituting a legal framework permitting to protect biological diversity in areas beyond national jurisdiction. The designation of protected areas in the open ocean where wildlife and ecosystems are preserved is certainly essential to start addressing the global biodiversity crisis. However, it is disquieting that the treaty sets the threshold for protection in marine protected areas so low in a context where their effectiveness is questioned by marine biologists and environmental agencies. As the gap remains wide between the recommendations of the scientific community and the outcome of political negotiations, there is still a long way towards transformative change.

Photo: Shrimp trawler fishing off Nosy Hao, Madagascar, free license by transformbottomtrawling.org

[1] Kunming-Montreal Global Biodiversity Framework (19 December 2022) UN Doc CBD/COP/DEC/15/4, 4, para 2.

[2] Ibid. See Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Report on the work of its seventh session, Summary for policymakers (29 May 2019) UN Doc IPBES/7/10/Add.1 (IPBES report) 4.

[3] Kunming-Montreal Global Biodiversity Framework (n 1) 4 (para 2), 8 (goal A). See IPBES report (n 2) 5, 13-14, 17-18.

[4] IPBES report (n 2) 8, para C 4.

[5] Ibid, 7.

[6] Kunming-Montreal Global Biodiversity Framework (n 1) 4 (paras 3 and 4).

[7] Ibid, 9-12; Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets (adopted 29 October 2010) UN Doc UNEP/CBD/COP/DEC/X/2.

[8] [8] Kunming-Montreal Global Biodiversity Framework (n 1) target 3.

[9] Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets (n 7) target 11. See IPBES report (n 2) 23-24.

[10] UN General Assembly, ‘Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (4 March 2023) (High Seas Treaty).

[11] Ibid, article 2.

[12] Ibid, article 14(a).

[13] Ibid, Parts IV and II.

[14] UN Convention on the Law of the Sea (10 December 1982) (UNCLOS), articles 56 and 87.

[15] Garrett Hardin, ‘The Tragedy of the Commons’ Science 162 (3859) (1968).

[16] Article 116 of the UNCLOS.

[17] Articles 117-119 of the UNCLOS.

[18] Concern has been raised, however, regarding the failure of regional fisheries organisations to ensure the conservation of fish stocks in the high seas. See Sarika Cullis-Suzuki and Daniel Pauly, ‘Failing the high seas: A global evaluation of regional fisheries management organizations’ Marine Policy 34(5) (2010).

[19] Article 119 of the UNCLOS. See also the UN Fish Stocks Agreement (adopted 4 December 1995), article 5.

[20] Wilf Swartz, Enric Sala, Sean Tracey, Reg Watson and Daniel Pauly, ‘The Spatial Expansion and Ecological Footprint of Fisheries (1950 to Present)’ PLoS ONE 5 (2 December 2010); Daniel Pauly, Villy Christensen, Sylvie Guénette, Tony J Pitcher, U Rashid Sumaila, Carl J Walters, R Watson and Dirk Zeller, ‘Towards sustainability in world fisheries’ 418 Nature (September 2002) 689.

[21] See, eg, Douglas J McCauley, Malin L Pinsky, Stephen R Palumbi, James A Estes, Francis H Joyce, Robert R Warner, ‘Marine defaunation: Animal loss in the global ocean’ Science 347(6219) (2015); Boris Worm, Edward B Barbier, Nicola Beaumont, J Emmett Duffy, Carl Folke, Benjamin S Halpern, Jeremy BC Jackson, Heike K Lotze, Fiorenza Micheli, Stephen R Palumbi, Enric Sala, Kimberley A Selkoe, John J Stachowicz, Reg Watson, ‘Impacts of Biodiversity Loss on Ocean Ecosystem Services’ Science 314(5800) (2006); Callum M Roberts, ‘Deep impact: the rising toll of fishing in the deep sea’ Trends in Ecology and Evolution 17(5)(2002); Pauly et al, ‘Towards sustainability in world fisheries’ (n 20).

[22] McCauley et al, ‘Marine defaunation: Animal loss in the global ocean’ (n 21).

[23] David A Kroodsma, Juan Mayorga, Timothy Hochberg, Nathan A Miller, Kristina Boerder, Francesco Ferretti, Alex Wilson, Bjorn Bergman,Timothy D White, Barbara A Block, Paul Woods, Brian Sullivan, Christopher Costello, Boris Worm, ‘Tracking the global footprint of fisheries’ Science 359(6378)(2018) 904.

[24] IPBES report (n 2) 5 and 17-18.

[25] This is based on the assessment of the UN Food and Agriculture Organisation, ‘The State of World Fisheries and Aquaculture 2022, The Status of Fishery Resources’. See IPBES report (n 2) 18. See also see Cullis-Suzuki and Pauly, ‘Failing the high seas: A global evaluation of regional fisheries management organizations’ (n 18). 

[26] U Rashid Sumaila, Vicky W Y Lam, Dana D Miller, Louise Teh, Reg A Watson, Dirk Zeller, William W L Cheung, Isabelle M Cote, Alex D Rogers, Callum Roberts, Enric Sala & Daniel Pauly, ‘Winners and losers in a world where the high seas is closed to fishing’ Scientific Reports 5(8481) (2015); Crow White and Christopher Costello, ‘Close the High Seas to Fishing?’ PLoS Biol 12(3) (2014).

[27] Sumaila et al, ‘Winners and losers in a world where the high seas is closed to fishing’ (n 26).

[28] White and Costello, ‘Close the High Seas to Fishing?’ (n 26).

[29] See eg Mark J. Costello, ‘Long live Marine Reserves: A review of experiences and benefits’ Biological Conservation 176 (2014) 289; Enric Sala and Sylvaine Giakoumi, ‘No-take marine reserves are the most effective protected areas in the ocean’ ICES Journal of Marine Science 75(3) (2017); Octavio Aburto-Oropeza, Brad Erisman, Grantly R Galland, Ismael Mascarenas-Osorio, Enric Sala, Exequiel Ezcurra, ‘Large Recovery of Fish Biomass in a No-Take Marine Reserve’ PLoS ONE 6(8) (August 2011); Sarah E Lester, Benjamin S Halpern, Kirsten Grorud-Colvert, Jane Lubchenco, Benjamin I Ruttenberg, Steven D Gaines, Satie Airamé, Robert R Warner, ‘Biological effects within no-take marine reserves: a global synthesis’ Mar Ecol Prog Ser 384 (2009) 33; Joachim Claudet, Craig W Osenberg, Lisandro Benedetti-Cecchi, Paolo Domenici, Jose-Antonio Garcia-Charton, Angel Perez-Ruzafa, Fabio Badalamenti, Just Bayle-Sempere, Alberto Brito, Fabio Bulleri, Jean-Michel Culioli, Mark Dimech, Jesus M Falcon, Ivan Guala, Marco Milazzo, Julio Sanchez-Meca, Paul J Somerfield, Ben Stobart, Frederic Vandeperre, Carlos Valle and Serge Planes, ‘Marine reserves: size and age do matter’ Ecology Letters 11 (2008) 481; Benjamin S Halpern and Robert R Warner, ‘Marine reserves have rapid and lasting effects’ Ecology Letters 5(3) (2002).

[30] High Seas Treaty (n 10) Part III.

[31] Ibid, article 1.

[32] Ibid.

[33] Area-based management tools have also been defined as ‘geographically defined areas where human activities are regulated for one or more purposes, delivering one or more social and ecological outcomes to achieve objectives for biodiversity conservation, sustainable resource use, or both.’ See Julie M Reimer, Rodolphe Devillers & Joachim Claudet, ‘Benefits and gaps in area-based management tools for the ocean Sustainable Development Goal’ Nature Sustainability 4 (2021).

[34] On the difference between marine protected areas and fisheries management, see Jon Day, Nigel Dudley, Marc Hockings, Glen Holmes, Dan Laffoley, Sue Stolton, Sue Wells and Lauren Wenzel (eds), ‘Guidelines for applying the IUCN protected area management categories to marine protected areas’ IUCN (2019, second edition) (IUCN 2019 Guidelines) 17-18. See also See Reimer et al, ‘Benefits and gaps in area-based management tools for the ocean Sustainable Development Goal’ (n 33).

[35] IUCN 2019 Guidelines (n 34) 17.

[36] See Kirsten Grorud-Colvert, Jenna Sullivan-Stack, Callum Roberts, Vanessa Constant, Barbara Horta E Costa, Elizabeth P Pike, Naomi Kingston, Dan Laffoley, Enric Sala, Joachim Claudet et al, ‘The MPA Guide: A framework to achieve global goals for the ocean’ Science 373(6560) (2021). See also IUCN 2019 Guidelines (n 34).

[37] Mark J. Costello, Bill Ballantine, ‘Biodiversity conservation should focus on no-take Marine Reserves: 94% of Marine Protected Areas allow fishing’ Trends in Ecology and Evolution 30(9) (September 2015) 507; Grorud-Colvert et al, ‘The MPA Guide’ (n 36).

[38] IUCN 2019 Guidelines (n 34) 8, 17.

 [39]Allison L. Perry, Jorge Blanco, Silvia García and Nicolas Fournier, ‘Extensive Use of Habitat-Damaging Fishing Gears Inside Habitat-Protecting Marine Protected Areas’ Frontiers in Marine Science 9 (2022); Rafael A Magris, Robert L Pressey, ‘Marine protected areas: Just for show?’ Science 360 (6390) (2018); Joachim Claudet, Charles Loiseau, Marta Sostres and Mirta Zupan, ‘Underprotected Marine Protected Areas in a Global Biodiversity Hotspot’ One Earth 2(4) (2020); Kroodsma et al, ‘Tracking the Global Footprint of Fisheries’ (n 23).

[40] Manuel Dureuil, Kristina Boerder, Kirsti A Burnett, Rainer Froese, Boris Worm, ‘Elevated trawling inside protected areas undermines conservation outcomes in a global fishing hot spot’ Science 362 (6421) (December 2018). On the effects of bottom-trawling, see Les Watling and Elliott A Norse, ‘Disturbance of the Seabed by Mobile Fishing Gear: A Comparison to Forest Clearcutting’ Conservation Biology 12(6) (1998).

[41] Octavio Aburto-Oropeza, Brad Erisman, Grantly R Galland, Ismael Mascarenas-Osorio, Enric Sala, Exequiel Ezcurra, ‘Large Recovery of Fish Biomass in a No-Take Marine Reserve’ PLoS ONE 6(8) (August 2011); Enric Sala and Sylvaine Giakoumi, ‘No-take marine reserves are the most effective protected areas in the ocean’ ICES Journal of Marine Science 75(3) (2017).

[42] See Perry et al, ‘Extensive Use of Habitat-Damaging Fishing Gears Inside Habitat-Protecting Marine Protected Areas’ (n 39); Costello and Ballantine, ‘Biodiversity conservation should focus on no-take Marine Reserves: 94% of Marine Protected Areas allow fishing’ (n 37).

[43] Perry et al, ‘Extensive Use of Habitat-Damaging Fishing Gears Inside Habitat-Protecting Marine Protected Areas’ (n 39); A Perry, J Blanco, N Fournier, S García and P Marín, ‘Unmanaged = Unprotected: Europe’s marine paper parks’ Oceana (2020). See also European Court of Auditors, ‘Marine environment: EU protection is wide but not deep’ Special report 26 (2020).

[44] European Environment Agency, ‘Marine messages II: Navigating the course towards clean, healthy and productive seas through implementation of an ecosystem‑based approach’ EEA Report No 17/2019 (2019) (EEA report) 25-26 (see table 3.1).

[45] Ibid, 31. See also Dureuil et al, ‘Elevated trawling inside protected areas undermines conservation outcomes in a global fishing hot spot’ (n 40).

[46] Ibid, 31.

[47] See also European Court of Auditors, ‘Marine environment: EU protection is wide but not deep’ (n 43).

[48] See Grorud-Colvert et al, ‘The MPA Guide’ (n 36) 16-17.