Can We Save the Blue Half of Our Planet?

1 Introduction

In his very moving personal witness statement of his life and the future, called “A Life on Our Planet,” Sir David Attenborough pleads for the “rewilding of the planet”- restoring the wild places. 1 He points out that the sheer numbers of humans have overwhelmed the planet, taming it and changing it beyond recognition –indeed setting it on a downward spiral of fundamental and irreversible change. It is only by allowing wildness to return –allowing natural ecosystems to return and heal themselves can we save the planet from ourselves, he argues. Nowhere is this needed more than in the vast and less visible part of the planet that is covered by the ocean, particularly the part of the ocean which is beyond national jurisdiction –the high seas - that occupies nearly half the planet.

We already know that the ocean is at a crisis point. For the last twenty years and more, scientific report after report has flagged the increasing decline of ocean biodiversity and the damaging impacts of human activities –including over-extraction of resources and pollution, by plastic, of course, but overwhelmingly by anthropogenic climate change. The impacts of the excessive emissions of greenhouse gases (GHGs) have been direct - through intakes of carbon dioxide (CO₂₎  into the water column - as well as from the general effects of increased warming. In fact, the ocean has been subsidizing our human lifestyle, allowing us to continue to burn fossil fuels way beyond the absorptive capacity of the planet. If the same amount of heat that has gone into the top 2,000 m of the ocean between 1955 and 2010 had gone into the lower 10 km of the atmosphere, then the Earth would have seen a warming of 36°C, making it virtually uninhabitable. 2

Over 90 percent of the heat generated by CO₂ emissions, and 20 to 30 percent of the CO₂ itself, has been absorbed by the ocean. 3 This regulating function, however, leads to profound alterations of the ocean’s physics and chemistry manifested in ocean warming and acidification, which together are predicted to result in ocean deoxygenation, sea-level rise, a slowdown of ocean circulation, and changes in the structure of marine ecosystems and ocean primary production. These changes have had a long lead time 4 but as the ocean meets saturation levels, this may now happen quickly; indeed, changes in the ocean ecosystem are now taking place 1.5 to 5 times faster than the changes that are taking place on land.

We have been warned about this many times. The very important First Census of Marine Life, which finished in 2010, told us that the processes that absorb carbon depend heavily on ocean species –including the tiniest life-forms. Before we have even discovered the existence of many of these microorganisms, human activities, and particularly the resultant pollution, may have reduced their biomass by perhaps up to 30 percent. 5

The 2016 IUCN report, Explaining Ocean Warming: Causes, Scale, Effects and Consequences, 6 set out the projected consequences of these physical, chemical and biological changes for marine biodiversity. These include loss of breeding grounds on land and at sea; impacts on breeding success; changes in animals’ foraging strategies; sex ratio shifts in marine creatures; seasonality shifts in plankton leading to mismatch in prey and predator occurrences; poleward movement of fish shifting tens to hundreds of kilometres per decade; species invasions and local extinctions; shifts in biological community structures; shifts in fishing grounds of target species; reduction in the physical size of species such as plankton in response to food and nutrient limitations; reduction in size of fish leading to reduced fecundity, altered trophic interactions and decreased fisheries yield; potential increases in bycatch when overlaps of distributions of target and non-target species increase; whole marine ecosystem shifts as species respond to shifting boundaries in ocean temperature; and decoupling of community structure. Many of these changes, the report pointed out, are already occurring.

In its 2019 Special Report on the Ocean and Cryosphere in a Changing Climate, 7 the Intergovernmental Panel on Climate Change (IPCC) building on its previous work including its Special Report on Global Warming of 1.5C° 8 made projections of a global decrease in the biomass of marine animal communities and a shift in species composition over the twenty-first century which would happen in all emissions scenarios. It predicted that by 2100 over 60 percent (in a high emissions scenario) or over 30 percent (in a low emissions scenario) of ocean area would be affected by the five primary drivers of marine ecosystem change –surface warming and acidification, oxygen loss, nitrate content and net primary production change. 9 For most marine ecosystems, the IPCC predicts a significant difference in impact when compared with both the high and the low emission scenarios; however, “almost all warm-water coral reefs are projected to suffer significant losses of the area and local extinctions, even if global warming is limited to 1.5°C” 10 and with a 2°C rise the risk of coral losses are put at 99 percent. 11

The 2019 Report also highlighted the fact that warming-induced changes in the spatial distribution and abundance of some fish and shellfish stocks have had both positive and negative impacts on catches, economic benefits, livelihoods, and local culture. This has obvious negative consequences for indigenous peoples and local communities that are dependent on fisheries. At the same time, shifts in species distributions and abundance have challenged international and national ocean and fisheries governance, including in the Arctic, North Atlantic and Pacific, in terms of regulating fishing to secure ecosystem integrity and sharing of resources between fishing entities.

Future shifts in fish distribution and decreases in their abundance and fisheries catch potential due to climate change are projected to affect income, livelihoods, and food security of marine resource-dependent communities. Long-term loss and degradation of marine ecosystems compromises the ocean’s role in cultural, recreational, and intrinsic values important for human identity and well-being. 12 These changes are already underway. Some changes –like polar ice-cap melting and sea-level rise - will continue for decades, or maybe longer, even if the burning of fossil fuels were to be halted today, but ambitious GHG emission mitigation measures will make a real difference. It is heartening to see major industrial economies making major pledges to eliminate GHG emissions (EU by 2050; 13 China by 2060) 14 or become carbon neutral (Japan by 2050). 15 South Korea has also promised to try. 16

2 What Role Does Law Have?

There are already two complex legal regimes governing both the ocean and climate change: the 1982 UN Convention on the Law of the Sea (LOSC) 17 and the 1992 UN Framework Convention on Climate Change (UNFCCC). 18 I have commented elsewhere that “the Law of the Sea and the Climate Change regimes are two of the giants of the international law treaty arena, yet ... they appear like ships that pass in the night.” 19 Bodansky has recently reminded me that in 2009, prior to the Copenhagen Conference of the Parties, I had lamented that for many years the ocean was like “Cinderella” - not invited to the UNFCCC ball. 20 There is only one reference to the ocean –in relation to “sinks or reservoirs of all greenhouse gases” - in Art 4(1)(d) the 1992 text, nothing in the 1997 Kyoto Protocol, 21 and the most recent and now most important of the UNFCCC instruments –the 2015 Paris Agreement 22 - only mentions the ocean once - in the preamble. 23

But there are signs that things are changing. Bodansky again points out that in 2009 the World Ocean Conference adopted the Monado Declaration, 24 which recognized the need for climate change adaptation and mitigation to be informed by “ocean dimensions.” Later that year, ocean advocates led by among others, the late Dr. Biliana Cicin-Sain (who died prematurely on September 1, 2020) 25 organized the first Ocean Action Day at the Conference of the Parties (COP) that is now an annual event that has increasing prominence. In 2015, Chile sponsored the “Because the Ocean” Declaration, signed by 23 States, 26 including Fiji which in 2017 its COP presidency launched the Ocean Pathway initiative. 27 In 2019, representatives of more than 30 countries adopted the Brussels Declaration on “The Ocean and Climate Change.” 28

The following Section will look at the protection roles these two regimes could play in ocean conservation.

3 The 1982 UN Law of the Sea Convention

The 320 Articles plus IX Annexes of LOSC provide an overarching framework covering all aspect of the law of the sea. Its relationship with the UNFCCC is unclear but Boyle has looked at the possibility of using the pollution prevention regime of the LOSC, coupled with the compulsory dispute settlement provisions in its Part XII, to litigate the climate issue; initially relying on the Kyoto Protocol obligations 29 and more recently on the Paris Agreement. 30 That still is a possibility, 31 but as Boyle points out this does depend on the specific obligations that States have “actually agreed.” There is however an evolution in the LOSC regime which may also be promising in a different way.

The 1982 Convention has already been supplemented by two “implementing agreements” in 1994 32 and in 1995. 33 There may well be a third. In 2017 the UN General Assembly agreed to establish an Intergovernmental Conference (IGC) to negotiate an International Legally Binding Instrument (ILBI) under the 1982 Convention - on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (known as BBNJ). 34 This is the culmination of a more than a decade long process within the UN to develop a new instrument to better govern areas beyond national jurisdiction –basically the high seas. This part of the LOSC has been called an “unfinished agenda.” 35

The IGC was designed to have four substantive sessions –the last of which was scheduled for April 2020. Unfortunately, that was not able to take place because of the current pandemic, but three sessions had taken place and it seemed likely that at least one extra session might have been needed in any event. 36 A President’s draft with bracketed text is available from early 2020. 37

The agenda for the ILBI was agreed as long ago as 2011 as a “package deal” 38 which would include:

... together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity building and the transfer of marine technology. 39

The importance for the discussion here is that at least two of the items on that agenda being negotiated are important for restoring the health and productivity of the ocean. The first relates to the possible requirements in the new treaty for environmental impact assessments (EIAs)–including the assessment of cumulative impacts - of new activities in areas beyond national jurisdiction (ABNJ), as well as the possibility of strategic environmental assessments(SEAs). 40 Like all such assessment these would be designed to provide a major reality check on the wisdom of pursuing new activities which might put stress on ocean ecosystems and maybe for re-assessing existing ones.

The second agenda item is in the so called area based management tools (ABMTs) –including marine protected areas (MPAs). Experience at the national level has demonstrated beyond doubt the beneficial effects that the establishment of MPAs has on the conservation of biomass, even though these are often established in the face of strident opposition from user groups, particularly fishermen. 41 General international law, and indeed the LOSC itself, does not provide a mechanism for the establishment of conservation or other areas on the high seas that would have objective status and would thus be binding on all States. 42 The conservation through MPAs of more than 10 percent of coastal and marine areas by 2020 was the target set by the Convention on Biological Diversity in 2010 (Aichi Target 11), 43 that was taken over by the Sustainable Development Goal 14 (Life below water). That was not met and indeed, only 1.2 percent of the high seas have any form of protection. 44 More recent calls have been for 30 percent by 2030. And some scientists have made a case for closing the high seas entirely to fishing. 45 In fact recent evidence supports the view that taking fish out of the ocean releases carbon into the atmosphere. Researchers found that since 1950, ocean fisheries have released more than 730 million tonnes of CO₂ into the atmosphere. In 2014 alone, industrial fisheries emitted at least 20.4 million tonnes of CO₂, which is equivalent to the annual emissions of 4.5 million cars. 46 Large scale marine protected areas or “no fish zones” could therefore provide a major boost to the ocean biomass and biodiversity as well ecosystem health and ocean carbon processing.

The current President’s negotiating text of the ILBI envisages regular meetings of a COP, advised perhaps by a scientific and technical body. 47 The COP will have a decision making role –although whether it will be a primary power or secondary to existing regional and sectoral organizations is still not decided. 48 That means that if the ILBI COP does decide to endorse an existing high seas marine protected area (or other ABMT) or create one of its own, that decision might well be legally binding on all the Parties to the new agreement –and approach objective legal status under general international law. One of the problems of existing initiatives to establish high seas MPAs, such as that led by the 16 Parties to the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, 49 is that they are only binding on the State Parties to the regime that establishes them. 50

4 The 1992 UNFCCC Regime

The main initial issue is the extent to which the UNFCCC regime applies to global ocean issues, particularly the high seas. The 1992 UNFCCC did recognize the significance of the oceans as sinks; however, its primary obligations are directed at State Parties –which by definition do not have jurisdiction over areas beyond national jurisdiction (ABNJ). 51 Neither the UNFCCC nor the Paris Agreement defines their scope of application according to maritime space. Instead, each creates obligations or a framework of conduct (policies and measures) for each State Party. These obligations/policies or measures can only be implemented and enforced by State Parties for activities under their jurisdiction and control. So, in a limited sense, there is no restriction within the Paris Agreement that would prevent its application in ABNJ, but this would only apply to activities that are under the jurisdiction and control of the State.

As highlighted before, the Paris Agreement Preamble does refer to the importance of “ensuring the integrity of all ecosystems, including oceans ... ” This is not limited to national jurisdiction. However, the objectives of national action and the Nationally Determined Contribution (NDC), which each State Party will make and communicate, 52 are closely linked to achieving the temperature goal under the Paris Agreement, namely “[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels ... ” Consequently the structure of the Paris NDCs is national in that under Art 4(2):

Each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic polies and measures, with the aim of achieving the objectives of such contributions. (Emphasis added)

The Parties must communicate and implement their policies and measures within the scope of the area and activities over which they exercise jurisdiction and control. This presumably includes the activities of nationally registered vessel and aircraft 53 . However, neither the Paris Agreement nor the UNFCCC defines their scope of application according to maritime space. A major analysis of the content of NDCs has identified many references to the ocean, 54 but they either relate to proposed adaptation actions or to mitigation activities that are legal for States to conduct in their own zones or in relation to their own nationals, such as the restoration of coastal ecosystems, coastal fisheries and similar.

So, to include a mitigation activity in ABNJ within an NDC it would need to be an activity which is legal for a State to take unilaterally under the LOSC, of which there are few. 55 Or it would have to involve collaboration with other States –such as through a relevant international organization. For example, a commitment to a catch reduction on the high seas designed to increase biomass (and hence capture carbon) would need to be done through a Regional Fisheries Management Organization (RFMO) to be effective. Unilateral action by a State to, e.g. stop its own nationals or vessels from fishing a high sea area as mitigation exercise, would not qualify because the “slack” –the reduction in fishing effort - created by that one State could then be taken up by other States (so called leakage) –unless of course a competent international body endorsed and enforced it.

What would be the incentive for such collaborative action? One always hopes that enlightened self-interest or a simple desire to increase ambition might be sufficient, but there is another possibility. Article 6 of the Paris Agreement appears to reproduce the “trading” options available under the Kyoto Protocol. 56 It will be recalled that, under Kyoto, only developed countries in Annex I had obligations to reduce GHG emissions. In an attempt to lessen the costs of compliance, “carbon trading” was permitted between Annex I countries with emission reduction obligations –so-called Joint Implementation. 57

Also, Annex I countries could buy emissions reductions from projects in developing countries through the Clean Development Mechanism (CDM). 58 The Paris Agreement is very different from Kyoto because all Parties have committed to reduce GHG emissions through their NDCs. However, Art 6(2) of the Paris Agreement seems to envisage a Joint Implementation type arrangement with Parties “engaging on a voluntary basis in cooperative approaches that involve the use of internationally transferred mitigation outcomes towards nationally determined contributions ... ” 59 Also, Article 6(4) establishes what has been called the “Sustainable Development Mechanism” which seems in many ways to be modelled on the CDM. 60 Unfortunately, the various rules and modalities for both mechanisms –which are part of the so-called “Paris Rule Book” –were due to have been finalized at the UNFCCC Glasgow COP 26 in in 2020, which has now been postponed to November 2021 because of the pandemic. 61 Nevertheless, they may offer an interesting means where by collaborative international activities in ABNJ sanctioned by sectoral organizations with competence to regulate high seas activities might be used, not to avoid national compliance with national contribution commitments but to supplement and enhance them.

One of the most obvious types of such activities would be the setting aside of large ocean areas as no-fishing zones for the enhancement of biomass, thereby increasing its GHG absorptive capacity and also –as importantly –“re-wilding” and contributing to general ocean and planet health. 62 As a mitigation activity, this type of collaborative project might also qualify for support from the operational entities of the UNFCCC financial mechanism –the Global Environment Facility 63 or the Green Climate Fund. 64

5 Conclusion

Maltese Ambassador Arvid Pardo, in his now-famous speech to the UN General Assembly in 1967, did warn that:

“Man, the present dominator of the emerged earth, is now returning to the ocean depths. His penetration of the deep could mark the beginning of the end of man, and indeed for life as we know it on earth ... ” 65

He was worried about the risks of militarization in a nuclear age and of a “scramble for the ocean floor” equivalent to the nineteenth-century scramble for Africa. Today, his words have a different but equally ominous ring to them.

There is still reluctance in some places to accept that climate change is a crisis. But for many ecosystems, it is an existential crisis. Polar ice systems and coral reefs are obvious candidates. Still, it would not be an exaggeration to say that the ocean itself is heading into one of what David Attenborough has called a download spirals. That spiral can be arrested but not by continuing “business as usual.” One hundred and fifty years ago, steamships replaced sailing boats; a hundred years ago, the internal combustion engine replaced the horse. We have come to a similar place now with fossil fuels–although the existing industry will continue to fight change, aided by short sighted and unscrupulous politicians.

We do need to have a similar “sea change” in the way we currently treat the ocean and its vital life support ecosystem services as well as the resources that it offers. Grotius may have been wrong to think the resources of the sea were unlimited, but he did think that the ocean “... ought in perpetuity to remain in the same condition as when it was first created by nature.” 66

We have already proved its resources are not limitless and we have, perhaps unwittingly, embarked upon a path that would indeed change it beyond recognition. We now know the reality; it may not be too late to change direction, but the task is major and urgent.