COP16 Brief: Biodiversity Protection and Oceans

As the largest part of our planet’s surface, oceans are critical under the UN Convention on Biological Diversity (CBD)

1) Significance of marine biodiversity: 

The biodiversity of “marine and coastal waters”, as the term is used in the CBD context, represents a large share of the planet’s global biodiversity:

– the world’s oceans cover over 70% of the surface area of the planet;

– oceans contain an enormous variety of life, in a wide range of habitats;

– far below the surface, in the dark depths, seamounts provide habitat for rich and diverse communities;

– so far, about 226,000 marine species have been identified and recorded, but this represents only a fraction of the total. Only a small percentage of the oceans has been explored and documented;

– oceans are of vital importance for life on our planet as a support system to mitigate climate change, produce oxygen and provide numerous food and economic possibilities for humanity.

2) Threats to marine biodiversity: 

Marine biodiversity may be addressed at the levels of : 1) diversity of creatures and their populations; 2) genetic diversity within species; and 3) ecosystem diversity.

Threaths from human activities take diverse forms, including in particular: 

– overfishing and habitat destruction, causing disruptions to marine ecosystems and food webs – with impacts on both targeted species and ‘bycatch’ species;

– increased atmospheric carbon concentrations causing rising ocean temperatures and acidification, together with habitat destruction that further threatens marine life and reduces carbon sequestration;

– marine pollution including from vessels, discarded fishing gears and landbased sources of wastes (e.g. plastic).

3) Marine biodiversity under the CBD: 

Coastal and marine biodiversity is an area of primary interest for the CBD, as reflected in the 1998 CBD Programme of Work on Marine and Coastal Biodiversity, the 2010 Aichi Biodiversity Targets for the decade 2010-2020 and, closer to us  — and directly relevant to the upcoming COP16 — the Kunming-Montreal Framework.

Among the earlier CBD COP decisions directly addressing marine biodiversity, we find: 

– at COP 4 (1998), decision IV/5 adopts a programme of work on scientific, technical and technological aspects of the conservation and sustainable use of marine and coastal biological diversity;

– at COP 9 (2008), decision IX/20 addresses the potential impacts of direct human-induced ocean fertilization to sequester CO2, and of ocean acidification;

– at COP 10 (2010), decision X/2 adopts the Strategic Plan for Biodiversity 2011-2020, with its twenty Aichi Biodiversity Targets. Essentially all 20 targets apply to marine and coastal biodiversity, with targets 6 (on fisheries), 10 (on coral reefs) and 11 (on marine and coastal protected areas) being particularly relevant;

– also at COP 10, decision X/29 reviews the progress made in implementing the programme of work adopted at COP 4. The decision notes that efforts made have not sufficed, and directs the Secretariat to take various actions, including the organization of regional workshops to identify “Ecologically or Biologically Significant Marine Areas” (EBSAs). A substantial number of EBSAs were subsequently identified, and reported back to COPs;

– also at COP 10, decision XIII/10 addresses the impacts of marine debris on biodiversity and habitats;

– at COP 12 (2014), decision XII/23 addresses anthropogenic underwater noise and ocean acidification.

4) The Kunming-Montreal Framework: 

– at COP 15 (2022), Parties to the CBD adopted the Kunming-Montreal Global Diversity Framework, including 23 action-oriented targets for urgent action over the decade to 2030. Essentially all of those targets are relevant to marine biodiversity;

– Parties at COP15 also adopted decisions to accompany the Framework, addressing the questions of: planning for, monitoring, reporting on, and reviewing the implementation of the Framework; resource mobilization; capacity-building; technical and scientific cooperation; digital sequence information on genetic resources; and cooperation with other conventions and international organizations;

– at the upcoming COP 16 (Oct-Nov 2024, Colombia) Parties will review the state of implementation of the Framework. They will then be expected to show the alignment of their National Biodiversity Strategies and Action Plans (NBSAPs) with the Framework, including as it relates to the marine environment.

5) Law of the Sea considerations: 

Under international law, the extent of States’ rights and jurisdiction in different marine areas varies according to the area in question. This, in accordance with the provisions of the UN Convention on the Law of the Sea (UNCLOS). In a nutshell :

– internal waters are extending from a country’ land mass up to baselines drawn by that country along its marine coast. Those waters fall under the complete control of the coastal State in question;

– the Territorial Sea is extending seaward from the baselines, up to a distance of 12 nautical miles (NM) – or roughly the equivalent of 22kms. The Territorial Sea is under the sovereignty of the coastal State, with specific rights garanteed to other countries (e.g. for navigation, holding the right of innocent passage);

– the Exclusive Economic Zone (EEZ) extends from 12 up to 200 NM from the baselines. It provides qualified jurisdiction to coastal States in specific substantive areas (e.g. fisheries, resource management, marine pollution), to be exercised in light of certain freedoms granted to the international community as a whole;

– beyond the limits of the EEZ, the High Seas are open to all States under the regime of the “Freedom of the High Seas”;

– regarding the seabed and its subsoils, States have sovereign rights over their continental shelves, extending up to 200 NM, or even beyond if specific geological conditions are met. Beyond national continental shelves, we find the “Area”, declared “Common Heritage of Mankind” in UNCLOS.

6) Geographic application of the CBD: 

The CBD, and thus the Kunming-Montreal Framework, provides for its geographic application “in the case of components of biological diversity, in areas within the limits of its national jurisdiction; and in the case of processes and activities (…) carried out under its jurisdiction or control, within (…) or beyond the limits of national jurisdiction.” (Art. 4)

This language raises questions as to the extent of CBD application in areas beyond national jurisdiction, such as the High Seas or the Area.  This has apparently prompted caution in CBD decisions, for instance when identifying EBSAs located beyond national jurisdiction, but refraining from establishing protection or management areas in those waters. References to the concept of “marine areas”, not defined in UNCLOS but found in various CBD documents, including the Kunming-Montreal Framework does not set the matter. 

7) A crowded field of international actors: 

A large number of other international treaties and organisations are relevant to marine waters, including the High Seas and the Area (keeping in mind that each of those instruments only apply to their respective States Parties). They include:

– the recently adopted UN Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement –  not yet into force);

– the UN Fish Stocks Agreement on straddling fish stocks and highly migratory fish stocks;

– the International Seabed Agency (ISA) created under UNCLOS to manage the Area;

– various global instruments adopted by UN Agencies such as the Food and Agriculture Organisation (FAO) on fisheries rules and practices, and the International Maritime Organisation (IMO) on ships and navigation matters;

– regional fisheries organisations and treaties;

– regional seas agreements, including under the UN Environmental Programme (UNEP) Regional Seas Programme;

– other multilateral and global treaties such as the Antarctic Treaty, the Convention on International Trade in Endangered Species (CITES), and the Convention on Migratory Species (CMS);

– and a flurry of bilateral and plurilateral tools.

This multiplicity is positive, as a diverse source of attention, resources and expertise towards better managing marine biodiverity, but may also be produce fragmentation, duplication, confusion, if not contradiction, among those efforts. This underlines the importance of cooperation, coordination and consistency among those many players.