FACULTY OF LAW

The most pressing borderless challenge in the maritime domain is beyond any doubt the governance of maritime areas beyond national jurisdiction and thus beyond the direct sovereignty of the State. The traditional position considers the high seas res communis omnium, but it has become increasingly clear that the continued well-being and indeed even the existence of such areas and the correlative access to their resources cannot be achieved without significant changes in their normative framework.

In the past thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. A decade ago, in 2008, the Census of Marine Life project highlighted the fact that anthropogenic pollution has already affected the ecosystems functioning in the deep ocean and that millions of organisms have been destroyed before they have even been identified by science. In 2018, a major study suggested that only 13% of the oceans remain truly wild – untouched by human impact. We know that plastics and other wastes are accumulating in the great gyres of the Pacific and the Atlantic, contaminating and suffocating pelagic creatures; and ultimately finding their way back into the food chain upon which we humans depend. At the same time, sustained demand for fish, particularly high-value fish, has accelerated commercial pressures and pushed fishing efforts into deeper waters as well as into more extreme environments, such as the polar waters and the Southern Ocean. High seas fish stocks are a particularly high-value source of protein for human consumption – but there is evidence of serious depletion in the larger pelagic species, such as tunas and billfishes, resulting in fishing for smaller species, lower down the trophic levels. This gives rise to serious questions about the impact of such fishing on the whole marine ecosystem and its long-term sustainability. Albeit somewhat late in the day, the international science community has also become more vocal about the role of the oceans in relation to climate change. While it is well known that the oceans are the most important global sink for CO2, research indicated that the processes that absorb carbon depend heavily on ocean species – including the tiniest life-forms.

These issues, which affect areas both inside and outside national jurisdiction, pose governance issues far beyond the remit of the 1982 UNCLOS. Indeed, a range of other global and regional treaties do regulate specific activities which take place in ABNJ, such as fishing, ocean dumping and navigation; yet these detailed sectoral treaties are only binding on States parties. So, the problem of proper (i.e. integrated and generally applicable) governance in ABNJ is exacerbated by the somewhat incomplete patchwork of existing treaties. In view of this, and in order to address the full range of issues particularly related to the conservation of biodiversity in areas beyond national jurisdiction, the UN General Assembly agreed in 2004 to a recommendation by the UN Informal Consultative Process on the Oceans and the Law of the Sea (UNICPOLOS) to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity in ABNJ. Almost 13 years later, the General Assembly decided in Resolution 72/249 (2017) “to convene an Intergovernmental Conference, under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible.” The delay in tacking the problem seems to be indicative of the difficulty rather than the urgency of the challenge.

It follows thus that the current project is extremely topical, given that it will develop along the on-going negotiations; indeed, several of the research team members are involved in them, thus ensuring the direct impact of our work to practice and vice-versa. In particular, we will assess whether the current negotiations and the governance framework for ABNJ under construction is efficient to avert the trajectory of ocean decline and to adequately manage the sustainable use of the marine resources of the global commons whilst protecting and preserving the marine environment and the ecosystem services it provides. This will be achieved through the preparation of research papers, policy briefs, news releases and workshops bringing in the discourse insights and contributions from both the academia and policy-makers.