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A new treaty governing biodiversity and the use of nearly 50 per cent of the world’s oceans, is inching closer to realisation.

The biodiversity of the world’s oceans are increasingly under threat from over-fishing, pollution, the decline of biodiversity, and acidification, among other perils. Currently, there is little formal international legal framework through which countries can share responsibility for addressing (or recognizing) these issues. With the exception of some activities, such as whaling and fishing, the health of the high seas—and its biodiversity in particular—is unprotected and unregulated.

To address the issue, the UN General Assembly (“UNGA”) passed a resolution in 2015 to lay the initial groundwork for a possible new treaty aimed at protecting the biodiversity of the world’s oceans. State representatives to the preparatory committee responsible for developing a framework for the treaty negotiations have now agreed to recommend the elements to be considered in the development of a new treaty.

This new treaty would be formed under the United Nations Convention on the Law of the Seas (“UNCLOS”) and would focus on “biodiversity beyond state jurisdiction.” UNCLOS establishes the exclusive jurisdiction of coastal states over marine areas extending 200 nautical miles from their coasts, known as exclusive economic zones (“EEZs”). The new treaty would aim to promote and regulate the conservation and sustainable use of marine biodiversity in the areas beyond state EEZs, and therefore beyond state jurisdiction.

The elements of the new treaty recommended by the preparatory committee would include marine genetic resources, area-based management tools, environmental impact assessments, and capacity-building and the transfer of marine technology.

The actual negotiation, writing, and ratification of such a treaty is still likely to be far off, and there are considerable hurdles to its implementation and ultimate effectiveness.

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