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Governing the high seas

06 May 2022 / environment Print

The sea, the sea

The high seas are not a total free-for-all, but risks to these areas are serious. There is no management of new activities, nor is there coordinated governance of existing high-seas industries, writes Thomas McInerney.

COP 26, the pre-eminent UN summit on climate change, took place late last year in Glasgow. The River Clyde and its port city have had a close connection with the high seas in not-so-distant history.

At one point in the early 1900s, a fifth of all ships globally were built in Glasgow. Despite this apt backdrop in which to discuss the dominant issues of the high seas, hopes were not exactly high in the lead-up to the summit.

We know from experience that representatives at the international negotiating table struggle greatly to tackle issues that fall outside national jurisdictions.

It may also be the case that, on the long list of environmental problem areas, the global commons have been relegated below more tangible, although not always realised, state pledges related to internal affairs – energy, farming, transport, and so on. (The term ‘global commons’ is a term used to describe global shared resources, including natural resources like the high seas, the atmosphere, outer space, and areas like Antarctica.)

Despite reservations, COP 26 resulted in the Glasgow Climate Pact, which includes calls for an annual dialogue to strengthen ocean-based action, to be scrutinised and reported back to the COP every year.

The high seas consist of everything beyond 200 nautical miles off our national coastlines. They account for around two-thirds of the world’s oceans and 95% of the planet’s occupied habitat.

Moby Dick

We know already that marine protected areas (MPAs) are an effective tool in coastal waters that provide a framework for implementing area-based conservation. On an economic level, MPAs ensure that human activity is kept to a level that will sustain biological diversity and productivity.

They allow the underwater ecosystem to recover from human exploitation and rebuild a natural carbon sink. This mitigates the effects of climate change and combats ocean acidification. In short, they work.

Global action is needed to protect our high seas and deep oceans in light of the ever-increasing demand for resources from corporations and governments looking to cash-in on the resource-rich marine global commons.

If we are not extremely careful, the wanton exploitation of the high seas in the name of fossil fuels, minerals, medicines, and food will be yet another global disaster to add to a growing list. Blackbeard, no longer a pirate, might soon be a licensee.

The Poseidon adventure

In February this year, represent-atives from over 100 countries (including Taoiseach Micheál Martin) met in Brest, France, to take part in a summit to discuss and develop global measures to preserve marine areas outside national jurisdictions. It was held in the context of the French presidency of the EU Council, with the support of the UN.

One of the summit’s main aims was to reach a globally binding solution, but no treaty was ultimately forthcoming. It is notable that, back in 2015, the UN agreed to negotiate a treaty to protect the high seas, and so the dictum on this point seems somewhat stagnant.

That said, a number of impressive pledges were made by influential stakeholders, and the ball is now rolling for continued discussion throughout the year. The next opportunity took place in March, at the UN’s Fourth Intergovernmental Session on an agreement for the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.

In Brest, there were a few who led by example. Chilean representatives proposed the creation of a marine protected area in the high seas over the Salas y Gómez and Nazca ridges – two chains of submarine mountain ranges stretching nearly 3,000km across the south-east Pacific.

President Macron announced a one-million-square-kilometre extension of the MPA currently in place over the French South-ern and Antarctic Lands – an overseas uninhabited territory of France since 1955. If Macron follows through, this MPA would be the second largest in the world, Antarctica boasting the largest.

The greatest financial commitment came from the French, German and Spanish national banks, together with the European Investment Bank. They pledged €4 billion to develop the Clean Oceans Initiative, whose aim is to combat plastic pollution. Negotiations on a binding international treaty on plastic pollution took place in Nairobi at the end of February.

In all, 14 countries announced measures to strengthen the fight against illegal fishing. Measures noted included improving port controls and mobilising national navies.

UNESCO announced its intention to map 80% of the ocean floor by 2030. This is all well and good, if this newfound knowledge is used to protect and preserve. But if financial interests are allowed their way, unabated extraction of resources could be disastrous.

European Commission president Ursula Von der Leyen announced the launch of a global coalition – which includes the 27 EU countries and 16 others – to conclude the treaty on the high seas. (Seven years of listening to this promise has an air of ‘boy crying wolf’ about it!)

Hornblower

The high seas are not a total free-for-all, and some governance does exist in the hands of the International Maritime Organisation and the International Seabed Authority, along with their interactions with regional fisheries management organisations. As it stands, however, the risks to these areas are serious. There is no management of new activities taking place, nor is there coordinated governance of existing high-seas industries.

Seabed mining
The booming technology sector has led to a rise in demand for minerals and metals, many of which can be extracted from the seafloor. Many of the areas identified for future seabed mining are recognised as vulnerable marine ecosystems.

The International Seabed Authority, established in 1982 under the United Nations Convention on the Law of the Sea, is charged with regulating human activities on the deep-sea floor beyond the continental shelf. To date, it has issued 30 contracts for mineral exploration of the deep sea, encompassing a combined area of more than 1.4 million square kilometres. It has yet to reject an application.

While states have yet to agree a rulebook on how deep the oceans can be exploited, activists such as David Attenborough argue it is reckless to go ahead in the face of so much uncertainty. We simply have no idea of the potential consequences in terms of habitat destruction, water contamination, fisheries disturbance, sound pollution, and so on. All the more reason to finalise that treaty and ensure its efficacy.

Rocket launches
The launching of rockets requires the burning of toxic chemicals, such as aluminium and ammonia. A study of the effects of gases produced by space-shuttle launches found the soil and water quality in the area was severely affected, as was the surrounding vegetation. After several shuttle launches, large numbers of dead fish were found in nearby water bodies.

Russia’s recent proposal to conduct naval exercises 200km off the Cork coast was met with much opposition and confusion. The impact on our sonar-based animals (such as whales and dolphins) from such blasts is likely to be significant.

A further issue is the presence of toxic waste in the debris from rocket launches that lands in the ocean. In 2017, the European Space Agency launched a satellite into orbit over the North Atlantic Ocean. During the second-stage detachment, a part of the rocket containing up to a tonne of toxic fuel separated and landed in waters between Ellesmere Island and Greenland, crucial to Inuit groups for hunting.

These waters are home to narwhal, seal and walrus. Unfortunately, this is not an uncommon abuse of the UN Declaration on the Rights of Indigenous Peoples, article 29 of which asserts that states must ensure that hazardous materials are not disposed of in Indigenous territories without their consent.

Aquaculture
This is essentially the controlled farming of aquatic organisms, and the practice is growing in scale. As it expands, aquaculture, like any domesticated farming of animals, can have significant consequences for the surrounding environment.

Although not generally carried out on the high seas, its impact can be global. Large amounts of wild fish are needed as feed. And when tons of fish are crowded together, they create a lot of waste, polluting parts of the ocean. Fish farms can also be breeding grounds for disease that can spread to the wild.

Slightly worryingly, the Food and Agriculture Organisation of the UN last year reported a 527% increase in aquaculture production from 1990 to 2018. However, it also stated that there is growing evidence that when fisheries are properly managed, stocks rise consistently above target levels, or start rebuilding. That said, the successes achieved in some countries and regions have not been sufficient to reverse the global trend of overfished stocks.

Treasure island

Despite the pressure that we put on the marine environment and the threats posed by our unchecked activities, there are vast resources that can be safely and sustainably utilised if our practices are managed correctly. We have known for a long time that international law can be slow to realise its ambitions due to the range of voices at the table.

But if powerful financial interests are rightfully demoted to a level of priority just below the protection of our seas, then it is no longer a case of what is good for me may not be good for you.

Protecting our oceans should be common ground in international diplomacy. The high seas and their deep oceans are one of the last true wildernesses on earth. We do not understand them. Let us hope we do not destroy them.

Look it up 

Read and print a PDF of this article here.

Thomas McInerney
Thomas McInerney is a trainee solicitor at Ronan Daly Jermyn’s Galway office.