Caitlin Feehery

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The world’s oceans are plagued by a myriad of problems, such as climate change, ocean acidification, overfishing, and pollution.[1] Coastal nations can regulate and ostensibly protect the waters within their Exclusive Economic Zones (EEZ), which are areas of the ocean that extend from the coast out to 200 nautical miles.[2] EEZs exist under the United Nations Law of the Sea Convention (UNCLOS), which formally grants coastal nations sovereign rights for these waters.[3]  This gives nations the ability to regulate and to further the protections and preservation of the ocean; for instance, coastal nations can create marine protected areas within their EEZ to benefit biodiversity, ecosystem health, and commercial fishery stocks.[4]

However, it is another story in the waters outside of the EEZ in Areas Beyond National Jurisdiction (ABNJ). Surprisingly, only a patchwork and fragmented legal framework exists for this area that consists of a majority—64 percent—of the total surface of the world’s oceans and nearly 95 percent of the planet’s entire habitat based on volume.[5] The various regulatory authorities and regional agreements have left huge gaps in protection for ABNJ.[6] For instance, while nations have a duty to protect and preserve the biodiversity of the oceans, there are no legal mechanisms and no designated processes for conserving the biodiversity in ABNJ.[7] So nations, under UNCLOS, are currently negotiating to create a new legally binding international instrument to fix these current governance gaps.[8] This new instrument, nicknamed the New High Seas Treaty, is being created at a critical juncture for ocean governance.[9] While the state of the oceans as a whole is degrading, the ability of nations to exploit the ocean’s resources is only increasing.[10] In particular, technologically advanced countries are harvesting Marine Genetic Resources (MGRs) from the deep sea with no regulatory oversight.[11]

This Note will address this new legally binding instrument under UNCLOS, specifically concerning MGRs. Section I will give the story of this new High Seas Treaty, specifically addressing the legal loopholes that exist for protecting the biological diversity and abundance, as well as the health of the ABNJ. Section II will provide background on MGRs , specifically the types of organisms they come from; the scientific processes used to create the genetic sequences that make up MGRs; and the crucial role they play in the ecology and economy of the world. Section III will investigate who “owns” MGRs in the ABNJ, which involves the competing ownership theories of “Common Heritage of Mankind” and “Freedom of the High Seas.” Section IV will compare other international treaties and international governance bodies to best determine governance strategies. Section V will provide recommendations to best manage MGRs found in the high seas, in particular by making recommendations for the final text of the New High Seas Treaty.

[1] Jeremy Jackson, The Future of Oceans Past, 365 Phil. Trans. R. Soc. B. 3765, 3768 (2010).

[2] Exclusive Economic Zone, IUCN, https://www.iucn.org/content/exclusive-economic-zone-eez (last visited Sept 25, 2019).

[3] Id.

[4] World Commission on Protected Areas, Guidelines For Marine Protected Areas, 2, 8 (Graeme Kelleher, ed. 1999).

[5] Areas Beyond National Jurisdiction, Global Environment Facility, https://

www.thegef.org/topics/areas-beyond-national-jurisdiction (last visited Oct. 20, 2019); Governing Areas Beyond National Jurisdiction, IUCNhttps://www.iucn.org/resources/issues-briefs/governing-areas-beyond-national-jurisdiction (last visited Oct 21, 2019).

[6] Governing Areas Beyond National Jurisdiction, IUCN, https://www.iucn.org/resources/issues-briefs/governing-areas-beyond-national-jurisdiction (last visited Oct 21, 2019).

[7] Id.

[8] Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, United Nations, https://www.un.org/bbnj/ (last visited Oct. 22, 2019).

[9]  Treaty Negotiations, High Seas Alliance, http://highseasalliance.org/treaty-negotiations (last visited Oct. 23, 2019).

[10] Stephanie Adelle Bonney, Bioprospecting, Scientific Research and Deep Sea Resources in Areas beyond National Jurisdiction: A Critical Legal Analysis, 10 N.Z. J. Envtl. L. 41, 42 (2006).

[11] Anja Morris, Marine Genetic Resources in Areas beyond National Jurisdiction: How Should the Exploitation of the Resources by Regulated, 22 N.Z. J. Envtl. L. 57, 58 (2018).