“Global commons” are “resources or regions outside of national jurisdiction”[1], including the high seas (water and seabed), the atmosphere, the Antarctic and outer space. The global commons are “unowned resources” outside of the sovereign states, which are not possessed or governed exclusively by any individual, organization or country. The exploitation of the global commons can bring enormous social and economic benefits. Thus it is closely related to the survival and development as well as the fundamental well-being of human kind. All states have equal rights and obligations to access, use and protect the global commons. Such issue concerning “public benefit or loss”must be resolved through multilateral consultations.
The governance of the global commons can roughly be categorized into three forms: The first form is guided by the principle of “Common heritage of Mankind”, emphasizing “benefits gained by exploitation are to be shared by all mankind”, such as mineral resources on the seabed of the high seas. The second form stresses on “protection for the purpose of peace”, such as the Antarctic. The third form is “free exploitation, joint protection”, such as the living resources of the ocean beyond national jurisdiction.
The oceans beyond national jurisdiction, also known as the high seas, are important global commons. Due to lack of management, the “tragedy of the commons” is happening in the high seas.
Human activities that take place directly in the high seas include fishing, shipping, seabed pipelines and cable installing, and the new exploitation of seabed minerals and genetic resources. As these exploitation activities continue to accelerate, the degradation of living resources and the emission of pollutants is also increasing.
Take fisheries as an example, two-thirds of the fish in the high seas are overfished. The ratio is twice that of fisheries in the waters under national jurisdiction. According to the World Bank, insufficient management of fisheries results in a loss of $50 billion per year. More over, pollution from the land also spreads across the oceans and even reaches the Antarctic. In addition to the highly toxic chemical that we know of, excess fertilizer also eventually end up in the ocean, causing eutrophication of the oceans and oxygen-deficient areas, which leads to the death of other marine life—In 2008, more than 400 of these “death zones” appeared in the oceans. A significant portion of the carbon dioxide emitted from human activities eventually dissolves in seawater, producing carbonic acid – the acidity of the ocean has risen by 25% since the Industrial Revolution. Ocean acidification has accelerated the degradation of shellfish and corals. In addition, marine litter, especially plastic and micro-plastic pollution, is also becoming more and more concerned by the public.
The United Nations Convention on the Law of the Sea (UNCLOS), known as the “Constitution of the Ocean”, with 168 parties to it, is the basic legal framework regulating all human activities in the ocean. However, UNCLOS also has serious flaws. Because the issue of resource conservation had not gotten enough attention during the formation of this treaty, the articles addressing conservation and environment in the Convention are weak and lack power of enforcement and punishment. In addition, not all countries have joined UNCLOS. For example, the United States, one of the main marine users, has not ratify the Convention, which means that its actions are not subject to the treaty.
Currently, there is no specific global organization for the protection of marine living resources. The governance of the high seas is mainly realized through a number of sectoral and regional institutions, including regional fishery management organizations, the International Seabed Authority, the International Maritime Organization and etc. However, these institutions pursue their own goals and lack coordination mechanisms. This fragmented state cannot provide comprehensive management for the enormous and complex ecosystems of high seas.
The discovery of deep-sea biological resources triggered the United Nations to open a discussion on the issue of “conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ)”. After more than a decade of discussions, the UN General Assembly decided to negotiate a new treaty under the UNCLOS (rather than the Convention on Biological Diversity) to manage the conservation and utilization of biodiversity in the high seas . The intergovernmental negotiations for this agreement officially started in 2018 .
The BBNJ negotiation discusses four issues together as a “package”: marine genetic resources, area based management tools, environmental impact assessments, as well as technology and capacity building. In addition, issues that still need discussing are the overall institutional framework that supports the implementation of these functions, such as whether a permanent establishment should be set up, whether a scientific advisory body is to be established, and so on.
The BBNJ International Agreement will be an important step in building the UNCLOS system and improving global ocean governance. It could provide a legal cornerstone for the conservation and sustainable use of high-sea resources, and provide more comprehensive means to further apply the precautionary principles and ecosystem principles through the area based management tools and environmental impact assessment. The new treaty may also promote international scientific and technological cooperation on the high seas. This agreement will coordinate and cooperate with other ocean-related international conventions and institutions to form an orderly and complementary framework for the management of the high seas.
Promoting global environmental governance is one of the priorities of Greenovation Hub (GHub). Climate and ocean is our focus. Since 2012, GHub started to work on marine conservation in the Antarctic, which brought our attention to the high seas. GHub has been participating in the BBNJ Prepatory Committee meetings since 2016 and has started related researching and communication work. We believe that by identifying key issues, proposing solutions, and promoting cross-disciplinary debate, we can provide support for China’s constructive participation in global ocean governance. We are looking forward to working with all stakeholders to support a BBNJ treaty that could effectively protect high seas. We are also eager to see the active role played by the concept of “ecological civilization” and “community of shared future” in global negotiation and cooperation for the protection of high seas biodiversity.
[1] Definition from The United Nations Environment Programme(UNEP)
