Trying to redirect a glacier: informing the new treaty for biodiversity beyond national jurisdiction

In the realm of United Nations policy processes, where time moves at (preindustrial) glacial rates, the negotiations over a new treaty for biodiversity beyond national jurisdictions has fit right in. Formal discussions on how to conserve and sustainably use the half of the planet that lies beyond any one country’s jurisdiction began around the turn of the millennium and were formalised under the UN General Assembly in 2004. These discussions aimed to enumerate existing governance structures for biodiversity in the open ocean and deep sea, and to gauge whether they were sufficient.

A waiting game

At the time, anyone could have easily answered the question. There were literally no regional fisheries management organisations governing deep sea fishing beyond national jurisdictions anywhere in the southern hemisphere in 2003, and half of the Pacific high seas had no regional fisheries governance structure at all. Those were some big and obvious gaps, but there was also clear movement toward the establishment of fishery management structures. So, delegations waited and delayed and stalled … and waited. By 2012, the vast majority of the globe was covered by fisheries management organisations, but their mandates were limited to fish, and they only managed about 3% of fish species in the high seas. Further, there was no governance of genetic diversity as there was on land after 2010 nor were there basic mechanisms in place to require environmental impact assessments or implement protected areas. Recognising that these major gaps still existed, and after a decade of discussions, the UN General Assembly resolved in 2015 to address the issue.

It was at this point, approximately 4000 days after the UN began discussing the issue, that I first had the opportunity to engage directly with the process. Astonishingly to none, my participation did nothing to increase the pace. From 2015 to 2017, a series of Preparatory Committee meetings paved the way for consensus-building and confirmed the need for a new treaty. To bring scientific information to bear on those four meetings, I edited a series of eight policy briefs and organised or participated in six side events to help inform delegations on subjects ranging from area-based management tools to the impacts of fisheries. Reflecting on that leap into the treaty negotiations, it was a heartwarming and fulfilling journey, where scientists and policy-makers worked together towards a more sustainable and equitable future. Just kidding. A fairy tale it was not. It was a lesson in humility. Trying to inform a process that was not just glacial in speed, but also in momentum and direction, was humbling. You could erect some roadblocks and hi-vis signage to indicate dangerous paths ahead, but the glacier eventually just seemed to slide over any obstacle and the information was subsumed into the whole … or buried underneath it.

In 2018, the UN agreed to start true negotiations for a new treaty via four intergovernmental conferences. Six intergovernmental conferences later, 19 years of work came down to a last-minute 36-hour final weekend push, resulting in an agreed text for the new treaty in March 2023. Nineteen years. In that time, Australia has seen eight prime ministers, CO2 concentrations in the atmosphere increased 30% more from preindustrial levels, fishing effort in areas beyond national jurisdiction increased by more than 20% and permits for deep sea mining exploration have quadrupled. We have waited a long time for this treaty, and we have lost a lot of ground in the wait.

Opening the door to 30 x 30

So, what does it do, and will it be effective? The new treaty provides ground rules for how the high seas can be protected, and how we will assess the environmental impact of activities there. Possibly most importantly, it articulates a new regime for access and benefit-sharing from marine genetic resources, which have already been used to develop extremely lucrative pharmaceuticals by corporations and countries who can afford to access these deep and distant areas. In addressing marine genetic resources, the treaty also enshrines for the second time in international maritime law the concept of areas beyond national jurisdiction being the “common heritage of humankind”, a critical concept that both equitably expands access to and responsibility for these areas.

There’s been particular focus on how the new treaty will impact our collective ability to meet the goal of protecting 30% of the planet by 2030. Put simply, without this new treaty, the 30 x 30 goal would have been a fantasy. Before this treaty, there was no global mechanism to allow countries to implement marine protected areas in the high seas, essentially removing nearly half of the planet from the protection equation. While this treaty does not protect any part of the high seas today, it provides the means for doing so and opens the door to achieving 30 x 30.

While the treaty text has been agreed, there is still a long way for this glacier to go and the impact it will have on the broader suite of international marine governance structures remains to be seen. The effectiveness of the new treaty will be tested by entrenched sectoral and regional organisations, and we may not fully understand what the new terrain looks like until the glacier has retreated from a few areas. I believe that, in surveying the new terrain, we will be able to identify the contours of how the efforts of a core group of scientists shaped it. From the inclusion of fish biodiversity to a recognition that area-based management will need to include dynamic measures, the imprints of our efforts have been carried forward – regardless of what we could see registering with delegations, or how we felt at the time. While humbled by my efforts to inform the development of the treaty, I am immensely proud for having tried. The treaty represents a seismic shift in how we govern and conserve the high seas, and I’m glad to have contributed a few tremors along the way.


Teaser image: Negotiations over a new high seas treaty wrapped up earlier this year in New York. Photo: Daniel Dunn

Image above: CBCS Director Daniel Dunn chairs a side event during the BBNJ intergovernmental conferences. Photo: Daniel Dunn

Project members

Associate Professor Daniel Dunn

Senior Lecturer
School of the Environment
Centre for Biodiversity and Conservation Science