By Ian Urbina, The New York Times, July 31, 2015
SUPPOSE a group of scientists wanted to dump 100 tons of iron dust into the sea based on a controversial climate-change theory that the ore might spur the growth of plankton that absorb carbon dioxide. They can — one businessman did that in 2012.
Imagine if entrepreneurial engineers hoping to save clients millions of dollars were able to launch rockets into space from a platform in the middle of the ocean, far away from curious onlookers, heavy taxes and strict on-land regulations. They can — a company has been doing this for over a decade.
And what if pharmaceutical companies decide to rake the ocean floor for the next wonder drug, with minimal environmental oversight and no obligation to make the profits, research or resulting medicines public? They can — the research is already happening.
All of this is possible because the waters farther than 200 nautical miles from shore are generally outside of national jurisdiction and largely beyond government control. More than 40 percent of the planet’s surface is covered by water that belongs to everyone and no one, and is relatively lawless and unregulated.
Over the next two years, though, the United Nations intends to change this reality. After nearly a decade of discussion, it ratified a resolution in June to begin drafting the first treaty to protect biodiversity on the high seas.
The agreement will create a formal process for setting aside protected marine areas in international waters. Unlike on land, there is no legal framework on the high seas for creating areas that are off-limits to commercial activity. The treaty will also create procedures for environmental impact assessments and establish a method for the public to be informed about large-scale projects in these waters, including fishing, seabed mining, shipping, research and other activities.
The broader philosophical debate over how to manage the oceans typically divides into two camps. On one side, advocates of a laissez-faire approach argue that at the core of modern maritime culture is a 17th-century notion known as mare liberum, Latin for freedom of the seas, which was popularized by a Dutch lawyer, Hugo Grotius. He contended that ships in passage should be unimpeded by governments, competitors or pirates. The sea, he argued, is international territory for use by all nations in passage or commerce.
Mare liberum has been central in fostering free trade and global commerce by keeping merchant routes unfettered by national rules or bureaucracies. Its proponents argue that the concept goes a long way toward explaining why roughly 90 percent of the goods we consume travel to market by sea. And mare liberum dictates that access to the oceans’ riches should remain on a first-come, first-served basis, they say.
The opposing view is that the high seas are one of several “global commons” (along with the atmosphere, Antarctica and outer space) that are shared by the public at large. Benefits derived from these commons should be distributed equitably. If, for example, the high seas offer up revolutionary new drugs, poorer countries should be able to access the research and share in the profits from their sale. The “tragedy of the commons,” some maritime experts say, is that since everyone is responsible, no one is willing or able to act. Often, this results in a free-for-all.
International waters have long been a magnet for unregulated activity. In many parts of the world, the waters beyond national jurisdiction represent an outlaw ocean, where crimes ranging from murder and slavery to dumping and illegal fishing occur with impunity. While larger shippers face tighter rules and more oversight because they typically operate out of bigger ports with more enforcement resources, this is far less true for the smaller and more numerous commercial vessels and fishing ships in regions like Southeast Asia and off the coast of Africa.
Meanwhile, advocates and entrepreneurs have turned to the open seas to circumvent prohibitions against abortion, gambling, prostitution and illicit drugs. Libertarians are courting venture capitalists to underwrite futuristic plans to create legally autonomous floating communities.
More recently, bigger and better-financed players, many of them industrial, have been stepping up their presence in global waters with potentially major environmental impacts. New drilling and mining technology has spurred a race to tap mineral resources that have been inaccessible because they were too far from shore or too deep underwater. The commercial fishing industry combs the world’s oceans with an efficiency never before seen. Bio-prospecting — or hunting for new medical breakthroughs — is a relatively recent addition to this list.
There are good reasons to be skeptical about the effectiveness of a global treaty. Enforcement of rules at sea is difficult and costly because the space is so vast. Even preventing slave labor on fishing boats or mandating traceability for seafood has proved to be a challenge. Intentional dumping, illegal fishing and other maritime crimes often occur with impunity.
But countries that previously opposed such a treaty — including Norway and the United States — now support the United Nations’ efforts. Creating marine reserves is increasingly popular and in the past six years the United States, Britain and smaller island nations, particularly in the Pacific, have set aside millions of miles of their waters. Secretary of State John Kerry is a vocal advocate for marine conservation. In March, the American government announced a plan to increase enforcement at ports by working with foreign partners to track fish from hook or net to plate.
There are also financial and scientific incentives to better manage the seas. Bio-prospecting has been held up by the lack of clear rules. Some investors have been reluctant to put money toward exploration because they fear they may later lose rights to the rewards.
As medicine hunters have run out of virgin frontiers on land, especially in the rain forests, they are increasingly turning toward the sea for the next wonder drug. In the past several years, the number of patents based on marine life has grown more than 10 percent annually. Sales of anticancer agents derived partly from marine organisms, for instance, have been estimated to be more than $1 billion per year.
Marcel Jaspars, a chemistry professor at the University of Aberdeen in Scotland, said one model for profit-sharing might involve creating a central pot — perhaps administered by the United Nations — either in the form of a fee paid for a license to carry out the exploration or as payments once the development of the drug begins. The money could then be directed back into ocean research, monitoring and enforcement.
Michele Kuruc, vice president of ocean policy at the World Wildlife Fund, added that there was reason for optimism about the treaty because its negotiators are paying more attention to mistakes made in the past. To ensure fuller participation they are considering a special fund, subsidized by wealthier countries, to help poorer countries comply with some of the agreement’s requirements. To avoid having countries with vested interests commandeering the process by blocking measures, they intend to limit the use of vetoes when an overwhelming majority supports a measure.
In the end, though, everyone involved agrees that the stakes are enormous. “We know more about the surface of the moon than we do about the bottom of the world’s oceans,” said Lisa Speer, the International Oceans Program director for the Natural Resources Defense Council, an environmental advocacy group.