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In the past few decades, States have repeatedly committed to conserve and protect the marine environment; halt and reverse the loss of marine biodiversity; apply the precautionary approach; take action to restore degraded ecosystems; and build the resilience of marine ecosystems. From the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982 to the adoption of the High Seas Treaty in 2023, there has been significant “norm building” based on global agreements, policies and commitments relevant to protecting ocean biodiversity from the impacts of activities like deep-sea mining and deep-sea fishing.

Since its establishment in 2004, the DSCC has contributed to many of these agreements by participating in negotiations, connecting scientific advice to real-world policymaking, and rallying our network and the general public to speak up for the deep sea.

It is now vital that all governments live up to their commitments and obligations and take urgent action to protect the precious ecosystems of our planet’s largest biome, the deep sea.

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS, 1982)

Adopted in 1982 and entering into force in 1994, UNCLOS created a legal order to “promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment” (Preamble). Part VII, Section 2 declares that: “All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas” (Article 117).

Part XI focuses on mineral resources in “the Area”, meaning “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Article 140 affirms that activities in the Area shall “be carried out for the benefit of mankind as a whole” and that the International Seabed Authority (ISA) “shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis”. 

Article 145 gives the ISA responsibility for taking measures “to ensure the effective protection of the marine environment from the harmful effects” of deep-sea mining. To this end, it states that the ISA should adopt appropriate rules, regulations and procedures for:

  • the prevention, reduction and control of pollution and other hazards to the marine environment.
  • the prevention of interference with the ecological balance of the marine environment.
  • the prevention of damage to the flora and fauna of the marine environment.

In 1995, the UN Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (known as the UN Fish Stocks Agreement, or UNFSA) was adopted. It entered into force on 11 December 2001 and led to the creation of regional fisheries management organizations (RFMOs) with mandates to regulate high seas fisheries and conserve the ecosystems they depend on.

PRECAUTIONARY PRINCIPLE (1992)

The precautionary principle was formulated in Principle 15 of the Rio Declaration on Environment and Development, adopted at the 1992 UN Earth Summit. It states that: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 

CONVENTION ON BIOLOGICAL DIVERSITY (CBD, 1992)

The CBD was adopted in 1992 and entered into force on 29 December 1993. It has three main objectives: the conservation of biological diversity; the sustainable use of the components of biological diversity; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Article 3 of the Convention says that States have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.

Since the CBD entered into force, further agreements have specifically strengthened commitments to the conservation of deep-sea ecosystems. The 2004 CBD COP7 Decision VII/5 states that “…there is an urgent need for international cooperation and action to improve conservation and sustainable use of biodiversity in marine areas beyond the limits of national jurisdiction, including the establishment of further marine protected areas consistent with international law, and based on scientific information, including areas such as seamounts, hydrothermal vents, cold-water corals and other vulnerable ecosystems.” It also highlights the need for “…rapid action to address these threats on the basis of the precautionary approach and the ecosystem approach”.

In December 2022, at the 15th Conference of the Parties (COP15) of the CBD in Montreal, Member States adopted the landmark Kunming-Montreal Global Biodiversity Framework (GBF). States committed to vital action to halt biodiversity loss and restore ecosystems, and to protect at least 30% of Earth’s surface, including the global ocean, by 2030. Target 15 of the GBF also calls for nature disclosures for businesses, ensuring that companies disclose risks, dependencies and impacts on biodiversity. 

At COP15 Member States also adopted a decision on the “Conservation of marine and coastal biodiversity”, which encourages “Governments to ensure that, before deep seabed mineral exploitation activities take place, the impacts on the marine environment and biodiversity are sufficiently researched and the risks understood, the technologies and operational practices do not cause harmful effects to the marine environment and biodiversity, and appropriate rules, regulations and procedures are put in place by the International Seabed Authority”.

UNITED NATIONS GENERAL ASSEMBLY RESOLUTIONS (2004)

UNGA resolution 59/25, adopted in 2004, was the first to call on States “to take action urgently, and consider on a case-by-case basis and on a scientific basis, including the application of the precautionary approach, the interim prohibition of destructive fishing practices, including bottom trawling that has adverse impacts on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold-water corals located beyond national jurisdiction, until such time as appropriate conservation and management measures have been adopted in accordance with international law”. 

UNGA resolution 61/105, adopted in 2006, calls on States to “protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold-water corals, from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain”. Where vulnerable marine ecosystems are known to occur or are likely to occur, the resolution calls on RFMOs “to close such areas to bottom fishing and ensure that such activities do not proceed unless it has established conservation and management measures to prevent significant adverse impacts on vulnerable marine ecosystems”.

Over the next decade, UNGA assessments determined that resolution 61/105 was not being implemented sufficiently, leading to additional resolutions to reaffirm and strengthen its commitments. UNGA resolution 64/72 in 2009 placed particular emphasis on impact assessments and called for stock assessments and conservation measures to ensure the long-term sustainability of deep-sea fish stocks and non-target species. UNGA resolution 66/68 in 2011 emphasized the need to strengthen procedures for impact assessments to take into account individual, collective and cumulative impacts, and to make assessments publicly available. UNGA resolution 71/123 in 2016 reiterated that impact assessments should be consistent with FAO Guidelines and carried out as a priority before authorizing bottom-fishing activities.

In December 2022, the UNGA adopted a draft resolution  calling on high seas fishing nations to urgently take action to prevent damage from deep-sea fishing to vulnerable ecosystems found on seamounts and other areas of the high seas, and “recognizing the immense importance and value of deep-sea ecosystems and the biodiversity they contain”.

Closing seamounts to bottom trawling is not only consistent with these UNGA resolutions, it is a key means of implementing them.

SUSTAINABLE DEVELOPMENT GOALS (2015)

In 2015, the adoption of the UN 2030 Agenda for Sustainable Development laid out 17 Sustainable Development Goals (SDGs). SDG 14 commits States “to conserve and sustainably use the oceans, seas and marine resources for sustainable development”, with target 14.2 committing States to: “by 2020 sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience and take action for their restoration, to achieve healthy and productive oceans”. In addition, SDG 12 commits States “to ensure sustainable consumption and production patterns”, and SDG 8 to “endeavour to decouple economic growth from environmental degradation”.

PARIS AGREEMENT ON CLIMATE CHANGE (2015)

In 2015, 196 States adopted the Paris Agreement at COP21, with the goal of limiting global warming to 1.5 °C above pre-industrial levels. A healthy ocean plays a vital role in climate regulation and mitigation by absorbing about 38% of the CO2 and 93% of the heat generated by greenhouse gas emissions.  

In 2019, the Intergovernmental Panel on Climate Change released a Special Report on the Ocean and Cryosphere in a Changing Climate which noted numerous climatic hazards for the deep sea, including loss of biodiversity and impacts on the water column and seafloor which are key for ecosystem services such as carbon sequestration.

In 2021, the Glasgow Climate Pact, agreed at COP26, emphasized the “importance of protecting, conserving and restoring nature and ecosystems, including […] marine ecosystems”, to act “as sinks and reservoirs of greenhouse gases” (Paragraph 21).

THE HIGH SEAS TREATY (2023)

In 2023, the historic “Agreement under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” – known as the High Seas or BBNJ Treaty – was adopted. This legally binding treaty will enable and enhance the protection of biodiversity in the high seas and the deep ocean. It demonstrates the commitment of governments to protect and prioritize the health of our ocean by acting individually and collectively “as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biodiversity of areas beyond national jurisdiction”.  

Parties to the treaty commit to be guided by several fundamental principles, including: 

  • The common heritage of humankind, which is set out in the Convention; 
  • The principle of equity and the fair and equitable sharing of benefits; 
  • The precautionary principle or precautionary approach;
  • An ecosystem approach; and
  • An approach that builds ecosystem resilience, including to adverse effects of climate change and ocean acidification, and also maintains and restores ecosystem integrity, including the carbon cycling services that underpin the role of the ocean in climate.

The objectives and principles enshrined in the High Seas Treaty are incompatible with both deep-sea mining and bottom trawling.