"THE oceans are our great laboratory for the making of a new international order, based on new forms of international cooperation and organisation, on new economic theory, on a new philosophy." That's the view of internationally renowned ocean law and policy expert, Elisabeth Mann Borgese, an expert in maritime and environmental protection, who died in 2002 in her 80th year.
Nearly two-thirds of our oceans are beyond national jurisdiction — in which no single state has authority. These cover 45 per cent of Earth's surface, plunge to depths of more than 10km and represent 95 per cent of Earth's total habitat by volume.
They contain vast riches of biological and inorganic resources and produce half of our life-giving oxygen. They constitute the world's largest long-term carbon sink and largest reservoir of genetic resources, including many used as medicine for cancer, for example, and others with major commercial and industrial applications.
With no government in charge, these "Areas Beyond National Jurisdiction" are overexploited, polluted and degraded, and the few laws in place to protect them are often weak and poorly enforced. In 1982, the United Nations adopted the United Nations Convention for the Law of the Sea (UNCLOS). It took 12 years for the convention to enter into force, but represents, in effect, a "constitution for the oceans" — laying down a comprehensive regime of law and order in the world's oceans.
It spells out the right of states with respect to oceans to navigate, fly over, fish, research, lay submarine cables and pipelines, construct artificial islands and more, balancing freedom with responsibility. But ever faster ships and refrigeration have enabled exploitation of deeper and more distant areas, resulting in an increasing loss of biodiversity and depletion of fish stocks.
Today, a growing body of scientific research has documented that we are nearing the oceans' ecological limits. The short-sighted era of the "freedom of the seas" is over, or should be. Certainly, the oceans are increasingly regulated. In addition to UNCLOS, the Convention on Biological Diversity and other international and regional agreements now address fisheries, marine pollution and conservation.
But they do not yet adequately address all ocean uses, such as biological prospecting and new ideas about climate change mitigation techniques, which demand detailed international rules and standards. Another issue is equity in access to deep resources that belong to all humanity.
Deep-sea expeditions and explorations involve sophisticated research vessels, instrumentation, submersibles and remotely operated vehicles — all representing huge financial costs and technologies available only to affluent developed countries.
This issue is easily seen in the patents associated with marine resources used in pharmaceuticals, enzymes and other products based on deep-sea organisms. The leaders among those patent holders are the United States, Germany, Japan, and a handful of other countries with access to the required technologies.
They reap the financial rewards, enabling further investments into discoveries. Bottom line: without serious investment in capacity building and technology transfer, income gaps will widen further with time.
UNCLOS, sadly, was drafted before the exploitation of genetic resources in the deep sea was foreseen. As a result, it is unclear in that convention if, like fish in the water column, such resources are subject to the "freedom of the high seas" regime. Or are genetic resources, like seabed minerals, subject to the "common heritage of mankind" regime.
A major step was taken in December 2017 when the UN, after more than a decade of discussions, agreed to convene negotiations on an International Legally Binding Instrument under UNCLOS on the conservation and sustainable use of Biodiversity Beyond National Jurisdiction.
The negotiations began in 2018 and continued through 2019, then were derailed this year by the Covid-19 pandemic. Negotiations focus on marine genetic resources (including benefit sharing), area-based management tools (including Marine Protected Areas), environmental impact assessments, and capacity building and technology transfer.
Malaysia, as a key member of the Group 77 and China, the negotiating group of developing countries in the UN, regards the oceans as a "Common Heritage of Humankind". In these critical negotiations, we must argue in favour of strictly sustainable development of these resources, that the oceans be reserved for exclusively peaceful purposes, and that benefits from these global commons be shared equitably, with particular consideration for the needs of the poor.
The writer is a senior fellow of the Academy of Sciences Malaysia. This article is based on a keynote address at the Institute of Oceanography and Environment, Universiti Malaysia Terengganu, on July 27