The law of the Seas, a licence for lawlessness

Ocean-Dwelling Species Are Disappearing Twice as Quickly as Land Animals.
The law of the Seas, a licence for lawlessness

By Sally Campbell

At the present time there is a seemingly bewildering array of treaties /protocols /conferences of international importance for the environment So what are they and what do they hope to achieve? Below is a brief description of three to watch out for in 2020 that will affect what the world community does about man-made climate change and how we manage the world’s high seas and resources to promote sustainability and ecosystems protection in the times ahead. Just as in inshore waters, political will to make commitments to change will be vital. As islanders we must all stand up for good marine governance and compliance. That applies equally to Scotland, as to Argentina, Norway, China and the USA, just some of the countries resisting change.

COP26: For the first time, the UK will host this year in Glasgow a UN Climate Change Conference of the Parties, number 26. These climate talks will be the biggest international summit the UK has ever hosted; bringing together delegates including heads of state, climate experts and campaigners to agree coordinated action to tackle climate change. The challenge is highly significant, with every state needing to step up to secure the environment we all live in. The UN Climate Change process is central to that collective action.
That requires political will!! So far the COP has not delivered for the environment with some states unwilling to commit to action, as we read about COP25 in Madrid…the USA of course being one! We all need to pressure our government to step up!

For the Oceans outside of coastal states waters, the most important are BBNJ and CCAMLR:

BBNJ: Intergovernmental Conference on an international legally binding instrument under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). This is critical this month as the history of these sessions is one in 2018 , 2 in 2019, and now this 4th session in 2020 is this month 23 March -3 April 2020 at UN headquarters New York where the 2nd draft text will be discussed. This is the meeting to watch for real commitment to managing the high seas for sustainability and the common good. Cross your fingers!

There are controversial issues outstanding.
The high seas and deep oceans represent 64% of world’s surface and when depth included it represents 95% of space for biodiversity.,

So what are they talking about? The legalese is terrifying but basically:

There are the 4 Elements to BBNJ
1. Marine genetic resources and sharing of benefits, especially with the developing world
2. Environment Impact assessment
3. Area based management tools including MPAs (Marine Protected Areas)
4. Capacity building and transfer of marine technology. An important issue for the developing world.

There are cross-cutting issues and still a lot of work to be done.
The question is – What will influence BBNJ on the state of biodiversity under threat? Many reports have been produced and the recent Global Assessment Report on Biodiversity and Ecosystem Service IPBES(2019), a report on the global state of biodiversity is important for BBNJ. Further, the Intergovernmental Panel on Climate Change (IPCC) Special Report on the Ocean and Cryosphere in a Changing Climate approved on 24 Sept 2019 by 195 IPCC member governments provides new evidence from the benefits of limiting global warming to the lowest possible level – in line with the goal that governments set themselves in the 2015 Paris Agreement.

What about fisheries ?
Fisheries of Areas Beyond National Jurisdictions (ABNJ), commonly called the high seas, are those areas of oceans for which no one nation has sole responsibility for management. Often considered the world’s last standing “global commons”, the complex ecosystems in ABNJ include the water column and seabed of the high seas. Nearly two thirds of the ocean lie in these areas.
The inclusion of fisheries in BBNJ? Is it a political rather than legal issue?

Another big issue is The Common Heritage Principle in the Law of the Sea. Basically, the seas including the High Seas belong to all of us, we all depend on them for resources, protection, ecosystems, drivers of climate and moderators of climate change etc and these should be shared. This includes all states, not just coastal states. The Seas are a “Commons” for all states once outside the 200mile limit of national waters.

There are three points on this Common Heritage Mankind (CHM) Principle. The area and its resources are the common heritage of mankind to include:
1. “Resources” means all solid, liquid or gaseous mineral resources in situ in the area at or beneath the seabed, including polychemical residues. These might include oil, gas, and other materials deposited by natural processes..
2. Seabed or water column including hydrothermal vents, home to chemosynthesis bacteria, starting point of the dark food chain.
3. Between the land and water
4. The Law of the Sea, a protocol from years ago is already making decisions, for example over chemical mining. This is problematic. Will BBNJ supercede these other processes?

Common Heritage Principle
There has been a lack of investment in compliance on fisheries etc. An area of discussion and non-agreement.
Some contentious issues: 2 groups in favour, one sceptical, about including fisheries. More conservationists are now, at last, a feature of BBNJ. Fisheries on the high seas have been out of control. They continue to want freedom of the high seas. So BBNJ has the tasks of:
• How to reconcile different interests?
• CHM or freedom of the high seas.
• Difference between seabed/water column.
• Issue of MPAs and fisheries agreement.
• Stimulate co-ordination between groups, IMOs, NGOs, States, all the actors have a role.
• The level of ambition is growing but some states willing to undermine, e.g. Argentina.
• Regulating everything together.
• Fisheries growing capacity a threat.
• Different levels of growth in the developing countries; capacity building but will never see the benefits of CHM.
There is a huge task ahead. Am I optimistic? I suspect BBNJ will require more meetings to come to any substantive agreement. Short term profit always gets in the way of making changes for the good of the planet, its ecosystems, and all its communities.

For Antarctica of vital importance. CCAMLR

The third international group charged with protection of our marine environment: the cold Antarctic water dissolves more oxygen than warmer waters further north. That oxygen supports a very productive marine population. Most attractive to fisheries.

CCAMLR: The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is the international body responsible for the stewardship of Antarctic waters. Founded in 1982, it is made up of 25 countries plus the EU. It distributes licences for the Antarctic toothfish and krill fisheries, and identifies itself as setting a global benchmark for sustainable fisheries management. However, despite a 2009 commitment to create a network of MPAs by 2012, progress has been glacial. Although there have been some significant victories, such as the creation of the large Ross Sea MPA in 2016, progress on environmental protection is regularly hindered by the countries that have a commercial interest in the krill and toothfish fisheries, and industrial fishing and transhipment continues to take place in some of the most unsullied and ecologically important waters in the world. In 2018, although 22 governments supported the sanctuary, negotiators from Russia, China and Norway stopped it from going ahead. The Russian and Chinese delegations even used delaying tactics, gerrymandering, to waste time and hold up the negotiations, rather than engaging with the scientific evidence for the sanctuary.

With this in mind, it is disturbing that so many of the listed deficiencies of CCAMLR has not solved the problem of international reefers (refrigeration ships) which are related to ship waste and pollution. 11 vessels had deficiencies in Annexes of the International Convention for the Prevention of Pollution from Ships (MARPOL), covering pollution from oil, sewage, garbage and exhaust emissions respectively. ‘Safety of navigation’ and various forms of laxity related to fire safety and prevention are recurring problems, suggesting that the vessels pose a significant risk of accidents and collisions. The inspections also raise questions about workers’ rights for the crews, with 14 vessels recorded with deficiencies associated with living and labour conditions. If deficiencies fail to be rectified, detention is the last course of action open to inspectors. Alarmingly, six of the 26 vessels have been detained in port at least once since 2017.

The reefers operating in the CCAMLR Convention Area have a poor record on pollution prevention and operational safety. As such, they pose a threat to the Antarctic ecosystem. For example, in 2017, a Uruguay Reefer collided with
sea ice near the Antarctic peninsula and sank at sea. According to a Mercopress report, it was carrying 560 tonnes of heavy fuel oil (HFO) onboard —a substance that is prohibited in the Antarctic by MARPOL. This was denied. However, regardless of the kind of fuel, it is lucky that whatever oil was onboard did not leak out and pollute the surrounding waters and coastline. Next time, the ecosystem may not be so lucky.

CCAMLR meets again in November 2020 in Hobart Australia. We need to lobby for the sanctuary and total agreement.

A final thought for us all to ponder. The Oceans need us to insist on change and regulation:

There is urgency here. There is research showing how transhipment at sea facilitates illegal, unreported and unregulated fishing that devastates our oceans. Using data from Global Fishing Watch and research from a wide range of maritime sources, Greenpeace has developed a record of 416 ‘risky’ reefer (refrigeration) vessels operating on the high seas. The report “Fishy Business” was published on 28 February 2020. The way these vessels operate poses a threat to the marine environment by facilitating illegal, unreported and unregulated (IUU) fishing, and undermines the human rights of their workers.

This global fleet hides behind complex ownership structures and ‘flags of convenience’ (FOCs) that reduce accountability and transparency. In a historic first, Greenpeace uncovers this murky system and its scale in illegal fishing. It highlights the continued governance gaps that allow malpractice in international waters to continue and calls for a strong Global Ocean Treaty that would provide a more holistic approach to ocean governance. Every fishery where these vessels are allowed to operate is in effect supporting an increased risk of IUU fishing and human rights abuses. In 2019, the single most active fleet of reefers involved in transhipments on the high seas was owned and/or controlled by Greek shipping magnate Thanasis Laskaridis. Many of his vessels are reported to pose an environmental risk and use FOCs that require lower environmental, labour and safety standards.

Download the Greenpeace full report on transhipment at sea: Fishy Business (PDF)

Sally Campbell, February 2020