The conservation and sustainable use of marine biological diversity in high seas

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by Yann Tephany,

PHDc , Maritime and Oceanic Law Centre, Law Faculty of the University of Nantes,

The meeting, held in New York from January 20 to 23, 2015 led to an agreement on the development of a legal instrument on “the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction” [1] in other words, on the high sea. The Ad Hoc group’s[2] work is in continuity of the measures initiated by the General Assembly of the United Nations on Oceans and the Law of the Sea[3].

The Montego Bay Convention on the Law of the Sea defines negatively the high seas[4]. Indeed, article 86 provides that “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State” belong to the high sea. In other words, high seas correspond to any maritime space apart from state sovereignty[5].

First specify the terms. What does “biological diversity” means?  This expression correspond to “the variability among living organisms from all sources including, ( …) terrestrial, marine and other aquatic ecosystems and the ecological complexes[6]. The concept of biodiversity is not limited to species, but also includes the environment in which they operate. Furthermore “sustainable”, term without real legal consistency, here refers to the necessity for the use of marine biological diversity in an appropriate manner to preserve the satisfaction of future needs. The Convention on Biological Diversity defines the sustainable use as “ the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations[7].

This recommendation is an important step in the development of an effective legal framework of the high sea. Indeed, the high sea is getting more and more exploited. Difficulties exist regarding the management of halieutic resources. Soon, other difficulties will arise. The quantities of potentially exploitable minerals in the seabed of the high sea also bring new perspectives[8].

This recommendation comes after a number of initiatives including the “Paris call for the high seas” in addition to the petition launched by the Global Ocean Commission and the Alliance for the high seas initiative. These efforts relayed by many NGO’s were alarmed by the lack of legal framework allowing a real environmental protection of the high seas. 

This meeting is the outcome of several assemblies[9], which announces futures measures related to the protection of the environment in high seas. While relying on Rio +20 “the future we want” and Montego Bay Convention, this recommendation provides that a legally binding act is implemented. To this end, a preparatory committee is established, open to all Member States, specialized agencies and outside observers whose goal is to make comments and recommendations for the future discussions. A conference initiated by the United Nations will be in charge of directing the groundwork for the production of this legal binging act.

Although this text is only a recommendation and is therefore not legally binding, its importance is not negligible. Indeed, “the recommendations are invitations to observe particular conduct addressed by an international body to a recipient who is external to it[10]. So it hires an official dynamic and will result in many inter-state and inter-organizational exchanges at least instructive. Furthermore this recommendation suggests many changes, including the implementation of marine protects areas on the high seas, which is not excluded by the Montego Bay Convention[11].

The protection of marine biodiversity seems to be one of the major challenges faced by the Law of the Sea. It appears that this text is a first step in the realization of a new law of the high seas, focused on protection of marine biodiversity. It remains to be seen whether this recommendation will be followed up. A new international legally binding framework suggests that a new governance of the high seas will be set up to fight against illegal fishing, pollution, overexploitation, and allow the natural environment to regenerate for us and for future generations.

[1]  Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction to the sixty-ninth session of the General Assembly 23 January 2015.

[2]  It’s an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity.

[3]  Rés.68/70 du 9 décembre 2013, para. 200.

[4] United Nations Convention on the law of the Sea, 10 decembre 1982.

[5]  [5] J.-P. PANCRACIO, Droit de la mer, coll. Précis, éd. Dalloz, 1ère éd., 2010.

[6]  Article 2 of the convention on biological diversity ( CDB ), Rio de Janeiro, 5 june 1992.

[7]  Article 2 CDB.

[8]  Global Ocean Commission report, « from decline to recovry – a rescue package for the global Ocean », 2014.

[9]  Metings april, 1 to 4, 2014 and april 16 to 19 june 2014

[10]  M. VIRALLY, « la valeur juridique des recommandations des organisations internationales », Annuaire Français de Droit International, 1956, p.66.

[11] Article 194-5 MBC : « The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habita ».

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