For the past decade, the issue of protecting biodiversity in the deep sea in areas beyond national jurisdiction - the high seas - has been extensively debated by the United Nations General Assembly (UNGA) and in other international fora. The UNGA adopted a series of resolutions, beginning with UN Resolution 59/25 in 2004, which called on high seas fishing nations and regional fisheries management organizations (RFMOs) to take urgent action to protect vulnerable marine ecosystems (VMEs) from destructive fishing practices, including bottom trawl fishing, in areas beyond national jurisdiction.
A report from the UN Secretary General in 2006 on progress on the implementation of the 2004 resolution concluded that little action had been taken to protect deep-sea ecosystems on the high seas from the adverse impacts of bottom fisheries despite the fact that "deep-sea habitats in these areas are extremely vulnerable and require protection."
As a result of a review by the UNGA in 2006, and calls by a number of countries including Brazil, Palau and other Pacific Island countries, the UNGA adopted a 'compromise' offered by nations whose vessels deep-sea fish on the high seas through UNGA Resolution 61/105, adopted by consensus in December 2006. Resolution 61/105 committed nations that authorise their vessels to engage in bottom fisheries on the high seas to take a series of actions, outlined in Paragraph 83 of the resolution. The main action points are summarised as follows.
A set of International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (FAO Guidelines) were then negotiated under the auspices of the United Nations Food and Agriculture Organization (UN FAO) to, inter alia, further define and agree to criteria for the conduct of impact assessments of high seas bottom fisheries; identify VMEs; and then assess whether deep-sea fisheries would have "significant adverse impacts" on VMEs. The FAO Guidelines were adopted in August 2008.
In 2009, the UNGA determined that Resolution 61/105 had not been implemented sufficiently. As a result the General Assembly adopted additional provisions in Resolution 64/72. This resolution reaffirmed the 2006 resolution and made it clear that the measures called for in Resolution 61/105 should be implemented, consistent with the FAO Guidelines, by flag states and RFMOs prior to allowing, or authorising, bottom fishing on the high seas to proceed. Resolution 64/72 placed particular emphasis on conducting impact assessments of bottom fisheries on the high seas and called on States and RFMOs to "ensure that vessels do not engage in bottom fishing until such assessments have been carried out". Resolution 64/72 further called for stock assessments and conservation measures to ensure the long-term sustainability of deep-sea fish stocks, including species impacted by deep-sea fishing which are not of commercial value (so-called non-target or bycatch species), and the rebuilding of depleted fish stocks. The key elements of the resolution are contained in paragraphs 119-120. Also crucially, the resolution called on States not to authorize bottom fishing activities until such measures have been adopted and implemented.
In addition to the UNGA, meetings of the Conferences of Parties to the Convention on Biological Diversity (CBD) have adopted a series of decisions calling for action. Most recently, the 2010 meeting of the 10th Conference of Parties called on high seas fishing nations to "fully and effectively implement" UNGA resolution 64/72.
The Deep Sea Conservation Coalition (DSCC), through its member organisations, has participated in negotiations to implement the UN resolutions on bottom fishing around the world over the past six years. Based on direct experience and a review of various actions taken, the DSCC released a report in September 2011 - Unfinished Business: A Review of the Implementation of the Provisions of United Nations General Assembly Resolutions 61/105 and 64/72, Related to the Management of Bottom Fisheries in Areas Beyond National Jurisdiction — to coincide with the 15-16 September workshop to review implementation of United Nations General Assembly resolutions 61/105 and 64/72. The main findings of the report include:
Based on this review, the DSCC concluded that high seas fishing States are, with few exceptions, failing to live up to the provisions of UNGA resolutions 61/105 and 64/72. As a result, deep sea stocks continue to be increasingly overexploited and vulnerable marine ecosystems may be lost. At the September 2011 workshop, the DSCC called on States fishing in areas where the UN resolutions have not been fully implemented to cease bottom fishing, as is required by resolution 64/72, until effective measures consistent with the resolutions are adopted and implemented, including required impact assessments.
The 2011 United Nations General Assembly negotiations concluded in December 2011 with the adoption of a new resolution (66/68) on Oceans and Sustainable Fisheries, calling on high seas fishing nations to take stronger actions to protect deep sea life. Welcomed by the DSCC, resolution 66/68 reinforces the conclusions of our September report. It concludes that "urgent actions called for in the relevant paragraphs of [previously adopted United Nations General Assembly resolutions] 61/105 and 64/72 have not been fully implemented" with respect to the regulation of deep-sea fisheries on the high seas and "emphasizes the need for full implementation by all States and relevant regional fisheries management organizations and arrangements of their commitments under those paragraphs on an urgent basis" to protect deep-sea ecosystems and species. The resolution further calls for strengthening procedures for conducting environmental impact assessments of high seas bottom fisheries and calls on States to publicize "without delay" the assessments and improve compliance with deep-sea fisheries regulations. The United Nations General Assembly agreed to hold another review of the implementation of the resolutions in 2015.
It is critical that the UNGA continues this level of oversight with regard to deep sea life lest it become a case of “out of sight out of mind”. Importantly, the new resolution called for more transparency in RFMOs and for impact assessments to be made public. These are important tools which DSCC will use to ensure transparency, accountability and compliance with the UNGA requirements by RFMOS.
The seabed in the international waters of the world's oceans was formally recognized the Common Heritage of Mankind by the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The regime for deep seabed mining is highly complex. It is regulated by specific provisions in UNCLOS and the 1994 Part XI Implementing Agreement, by regulations developed by the International Seabed Authority (ISA)(1), and by contracts entered into with the ISA. If the regulations now in development by the ISA prove inadequate to protect the deep sea environment they will be very difficult to reverse.
At present, regulatory processes concerning deep seabed mining allow only limited participation or even observation by civil society. Some important procedures (such as those before the ISA Legal and Technical Commission) are entirely closed to observers. Furthermore, because compliance is seldom reported, it is difficult to ascertain how effective existing rules and regulations have been in meeting their objectives. Detailed information on mining is considered to be proprietary, and is not shared.
To compound the issue, the capacity for managing human activities affecting deep ocean ecosystems is limited due to the lack of awareness, information and expertise among both decision makers and industry stakeholders. This makes it difficult to generate support for the protection of deep ocean ecosystems.
Despite these imbalances at the negotiating table and the huge scientific uncertainties about the potential impacts of deep seabed mining, between 2000 and 2012 the number of exploration applications approved by the ISA for deep seabed mining in areas beyond national jurisdiction (ABNJ) rose from zero to 17. The ISA approved five applications in 2012 alone, and more are pending. These will potentially grant their holders the right to start exploitation as soon as the mineral-specific regulations are developed —anticipated as early as 2016.
The exploration licenses granted to a range of companies and countries parcel out vast expanses of the Pacific, Atlantic, and Southern Indian Ocean seabed, in total covering an area close to the size of Indonesia. Altogether, nearly 600,000 km2 of Pacific Ocean (in areas under both national and international jurisdiction combined) have been granted mining leases or exploration contracts, including sites in Papua New Guinea, Solomon Islands, Fiji, Vanuatu, Tonga and the international seabed Area between Hawaii and Mexico.
The DSCC has attended the last two ISA annual meetings in Jamaica, and a very few other civil society groups have participated in the meetings in recent years. Given the pace of developments, there is now an urgent need for more resources and attention to be invested in ensuring that conservation and sustainability — and indeed human development - goals are integral to the regulations put in place. As they currently stand, the ISA requirements are very much skewed in favour of economic gains at any cost.
In short, the legal and regulatory context is evolving rapidly, with national and corporate mining interests leading the charge. Exploration activities are in full swing and accelerating, and in 2013 the ISA is scheduled to begin negotiating regulations for the exploitation of polymetallic nodules in the international seabed Area. A proliferation of licences will prejudice and undermine the development of strong regulations. Once contracts for exploration are granted, it may no longer be possible to amend or reverse regulations in already place. The time for action is now.
(1) The International Seabed Authority is an intergovernmental body based in Kingston, Jamaica, that was established to organize and control all mineral-related activities in the international seabed area beyond the limits of national jurisdiction.Â Currently there are 164 members (163 States and the European Union). The Authority was established under the 1982 United Nations Convention on the Law of the Sea and came into force in 1994 as a fully operational international organization. The ISA has a 35-member staff led by Secretary-General Nii Allotey Odunton of Ghana. For more information, go to http://www.isa.org.jm/en/home .