Marine Biodiversity Protection in the High Seas

Written By Nischala McDonnell

Characterised as the ‘last frontier of exploitation on the planet’, the high seas are often

perceived as a “lawless” Wild West. This perception originates from the Grotian vision of

the high seas as being common to all, enabling Nation-States to freely navigate, trade and

conduct fishing activities. These traditional freedoms of the high seas are reflected in the

United Nations Convention on the Law of the Sea (UNCLOS), since the high seas ‘are open to

all States’. However, this gives rise to an inherent tension between the right to exploit and

the protection of marine biodiversity in the high seas.

Fishing in the High Seas

The freedom of fishing is a cardinal freedom which has implications upon the adequacy of

marine biodiversity protection efforts. All Nation-States have the right to fish, yet this

freedom is subject to three broad constraints; treaty obligations, the interests of coastal

states, and other provisions within Section II of Part VII UNCLOS (i.e., conservation and

management of living resources in the high seas). The development of these constraints

recognised how Nation-States no longer have an unlimited freedom to exploit the supply of

fish without consideration of the impacts upon biodiversity conservation. Despite the desire

to avoid the tragedy of the commons, responsibility for marine biodiversity protection in the

high seas is dispersed between global and regional regimes. Consequent gaps and overlaps

in high seas fisheries biodiversity management include: uncoordinated geographic coverage

of relevant instruments and institutions; ineffective incorporation of biodiversity

conservation objectives; and the systems which monitor and enforce compliance have

questionable efficiency. Although jurisdictional and functional overlaps may provide

benefits to resource sharing, these overlaps and gaps ultimately impede marine

conservation management.

In response to this legislative and institutional patchwork, Regional Fisheries Management

Organisations (‘RFMOs’) developed as the modus operandi for fostering the duty to

cooperate in conserving marine resources. RFMOs manage high seas conservation on a

regional basis. Each RFMO is an autonomous body governed by different convention(s) or

agreement(s). Although RFMOs are regarded as the solution to the international fisheries

crisis, many fail to protect marine living resources on two major counts. First, RFMOs only

apply to contracting parties. As a consequence, Nation-States who are not RFMO members

would not be bound by those particular RFMO rules, leading to the manifestation of the

‘flag of convenience’ problem and the issue of free-riding. Second, there is absence of

contemporary environmental protection principles in some RFMOs created before the Fish

Stocks Agreement. Arguably, this is due to the original purpose of RFMOs; to allocate the

quota of fish available in the covered areas. In this regard, there is an inherent tension

between the right to exploit and the duty to protect marine living resources in the operation

of RFMOs. Consequently, most RFMOs are poorly suited to deliver biodiversity,

sustainability or ‘broader environmental protection’.

The misappropriation and mismanagement of national, regional and global fisheries are

evident in the current status of global fish stocks. As of 2018, nearly 90% of ‘world’s marine

fish stocks are now fully exploited, overexploited or depleted’ since catches have not been

limited to sustainable levels (i.e., maximum sustainable yield). The ocean system has

become more vulnerable to environmental stresses due to overfishing. Overfishing includes:

humanity’s practice of taking too many fish than can be sustainably yielded; taking too

many ‘high tropic level and valuable fish species’ which truncates the food web; and the use

of destructive fishing gear that severely impacts ocean habitats. The collective impacts of

overfishing drives ecosystem regime shifts. By reducing the number of fish and other marine

life in the ocean, the ocean’s ability to sequester carbon weakens. As a result, this increases

atmospheric CO2 levels, which then feeds the vicious cycle of global warming and the

climate change trajectory. Humanity needs to reverse our ecological debt and recognise

that when the oceans are ‘bountiful, they can continue their vital yet unacknowledged role

as chief climate regulator’. Therefore, ending overfishing could increase fish stock and

marine ecosystem resilience to climate change impacts. This would necessitate the

strengthening of positive feedbacks between humanity and the ocean, whilst

disincentivising the profits gained by overfishing. Hence, it is crucial to eliminate overfishing

in order to effectively mitigate climate change and ensure marine biodiversity protection.