Bringing the High Seas Biodiversity Treaty Into Port

The Nancy Foster, a U.S. National Oceanic and Atmospheric Administration ship, travels over Gray’s Reef, about 20 miles off the coast of Georgia, Aug. 7, 2019 (AP Photo by Robert F. Bukaty).

As President Joe Biden’s administration moves to restore U.S. global leadership on the environment, it cannot afford to ignore the health of oceans. It must spearhead the successful conclusion of negotiations on a U.N. high seas biodiversity convention, which are currently adrift. To bring this treaty into port, the United States will need to forge global agreement on several contentious issues. It will also need to temper its neuralgic opposition to legally binding multilateral commitments, recognizing that the treaty poses no threat to U.S. sovereignty and is deeply in American interests.

Although not entirely lawless, the high seas are poorly governed by a fragmentary patchwork of regulatory schemes covering everything from migratory birds and regional fisheries to deep-sea mining and pollution from ships. The biggest gap in oceans governance is the absence of a comprehensive agreement to conserve and sustainably manage marine living resources and ecosystems on the high seas, which are experiencing catastrophic declines as technological advances permit their unprecedented exploitation. Already, some 40 percent of the world’s oceans have been severely altered by human activity; only 3 percent can be considered pristine.

A proposed high seas pact—formally, the Internationally Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction, or so-called BBNJ treaty—would plug this gaping hole. It would dramatically enhance environmental stewardship over a vast commons that encompasses 43 percent of Earth’s surface, contains 90 percent of the ocean’s biomass, and constitutes the greatest repository of planetary biodiversity. The BBNJ treaty would be an implementing agreement under the U.N. Convention of the Law of the Sea, the closest approximation to a constitution for the world’s oceans.

Formal intergovernmental negotiations on the BBNJ opened in September 2018. Unfortunately, the treaty is now stuck in the doldrums. Prior to the COVID-19 pandemic, parties were slated to hold their fourth (and ostensibly final) negotiating session in March 2020. Bad timing. The postponed talks are scheduled to resume in August, though this date could slip. More worrisome, international divisions persist on core issues at the heart of the treaty, including the multilateral rules that should govern marine genetic resources, area-based management tools, environmental impact assessments and capacity-building. Underlying many specific disagreements is a broader philosophical divide: Developing nations insist that the high seas and their resources constitute “the common heritage of mankind,” whereas developed nations, including the U.S., tend to invoke the “freedom of the seas” and resist being bound by international obligations.

The topic of marine genetic resources is especially divisive. While there is consensus that all nations should benefit from their exploitation, the actual details of any global regime remain elusive—such as whether benefit-sharing should be voluntary or mandatory, or whether it should apply only to specimens collected in situ or also to digital sequence information (or genetic sequence data) subsequently derived from those specimens. Generally speaking, poorer nations insist on maximal benefit-sharing, whereas wealthy ones seek to protect the intellectual property rights of companies seeking to profit from their investments.

Countries are similarly divided on the principles and rules that should govern the collective management of fragile, biodiverse zones, including through the designation of marine protected areas and other arrangements. The high seas contain many ecologically sensitive regions, such as the Emperor Seamount Chain stretching from the Aleutian to the Hawaiian Islands. Nations have yet to agree on the authorities and mechanisms whereby the world will identify, establish, regulate and monitor such zones. Reaching agreement on such matters is a precondition for achieving the “30 by 30” goal of protecting 30 percent of Earth’s marine and terrestrial surface by 2030, a target Biden recently endorsed.

The BBNJ negotiations reveal that there is broad multilateral consensus for states to conduct environmental impact assessments before undertaking major activities on the high seas. But there is scant agreement on the threshold that should trigger such assessments, the technical standards that should inform them, and whether they should be mandated and/or reviewed by a treaty body. There is also disagreement on how best to build the capacities of developing countries to participate in the conservation and sustainable use of the high seas, including how to assess their needs and whether technology transfers should be mandatory or voluntary.

Beyond resolving these core issues, the final negotiations are supposed to determine any enduring institutional arrangements that will implement the treaty, which could include a secretariat and a standing conference of parties, as well mechanisms to resolve disputes among and monitor compliance by its parties. A huge bone of contention is whether such a governance structure should take precedence over existing sectoral bodies, notably the International Seabed Authority, as well as regional fisheries management organizations.

The Biden administration has a historic opportunity to help break these logjams. To credibly lead the world, however, the U.S. will need to abandon its long-standing reluctance to enter into legally binding environmental treaties, which it too often perceives as infringements on its ability to do what it wants—rather than as useful mechanisms to secure valued outcomes.

Such insistence on absolute freedom of action has frequently been shortsighted, but it is increasingly counterproductive today, as other nations and corporations dramatically expand their activities on and exploitation of the high seas, with disastrous consequences for the marine environment. In the absence of a high seas biodiversity treaty, for instance, there is little to stop a nation or private actor operating under a flag of convenience from undertaking ecologically destructive mining operations on a deep seabed, launching freelance climate remediation efforts at sea, or even creating floating cities mid-ocean, heedless of the impacts on marine life.

It is deeply within the U.S. national interest to voluntarily accept some international constraints on its own behavior, if, by so doing, it can prevent others from degrading the ocean commons. This is particularly true given America’s generally high regulatory standards. Historically, private U.S. corporations seeking to extract resources from the high seas have had to comply with American law, namely the National Environmental Policy Act, to ensure that they do not cause grievous harm to the ocean. While the Trump administration rolled back these procedural requirements, the Biden administration will surely reinstate them, raising an obvious question: If U.S. corporations are already subject to stringent environmental regulations, why should Washington oppose internationalizing them?

As a matter of course, the U.S. already routinely cedes freedom of action on the high seas, like when it enters into regional fisheries management organizations or accepts shipping lanes defined by the International Maritime Organization. Ratifying the BBNJ would entail similar self-limitations, but the payoff would be huge: helping to preserve the future of life on nearly half of the planet.