Fish populations and marine ecosystems around the world are facing steep declines due to overfishing, climate change, and marine pollution. A recent report compiled by scientists representing 50 countries found that over one-third of marine mammals and close to a third of reef-forming corals are threatened with extinction globally. Studies of fish have found a two-third reduction in large fish populations in the last 100 years.
A small group of corporations play an outsized role in exploiting marine animals in international waters. Estimates suggest that only thirteen seafood corporations account for up to 40% of the largest and most valuable fish catches worldwide. So far, decades old management measures to regulate fishing in international waters have failed to stem fish population declines. Corporate overexploitation also harms local fisherfolk. For example, foreign industrial trawlers from the fishmeal and fish oil industry, operating both legally and illegally, have stripped away important fishery livelihoods for communities in West Africa.
Meanwhile, dangerous working conditions, forced labor, trafficking, and other human rights abuses are alarmingly common onboard fishing and cargo vessels. Vessels engaging in environmental abuses, including overfishing and dumping at sea, have been frequently tied to hazardous living conditions, crew intimidation, and slavery at sea. Though the international legal system regulating our global oceans has been woefully unequipped to challenge these corporate abuses at sea, new treaty negotiations are an opportunity to address these interrelated harms.
This blog reviews the history of negotiations of a new treaty governing the oceans, details the persistent corporate abuse of both the environment and workers at sea, and proposes encoding corporate obligations in the treaty to protect the environment and human rights on the oceans.
The Biodiversity Beyond National Jurisdiction (BBNJ) Treaty
In early 2022, the United Nations (UN) will hold the fourth session of the Intergovernmental Conference on a new international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS), the overarching convention governing ocean issues. The new treaty is referred to as the Biodiversity Beyond National Jurisdiction (BBNJ) treaty and would be the first treaty under the UNCLOS since 1998. The BBNJ is focused on the conservation and sustainable use of marine biological diversity – meaning animals, plants, and other organisms – in areas beyond national jurisdiction.
The BBNJ treaty’s initial goals were four-fold. First, to address benefit-sharing for marine genetic resources – genetic sequences derived from deep-sea organisms that are used in medical and scientific research. Second, to develop area-based management tools, such as marine protected areas, to better protect all marine life. Third, to improve and strengthen the use of environmental impact assessments for activities conducted in international waters. And fourth, to enhance capacity building for marine technology transfer. The BBNJ Conference has already held three sessions, in September 2018, March 2019, and August 2019. While negotiations were expected to conclude in 2020, the COVID-19 pandemic delayed the fourth session to early 2022.
Throughout these sessions, each of the four elements of the proposed treaty has been subject to controversy. Who will benefit (developed or developing countries) from economic exploitation of marine genetic resources and patents for genetic sequences has been hotly debated. Indigenous communities in the Arctic have so far been excluded from decision-making around marine genetic resource exploration and exploitation in the Arctic region. Critics have also highlighted the serious limitations in proposals for expanded environmental impact assessments (EIAs) under the treaty, which do not currently include strong provisions for international review of decision-making after an EIA has been conducted. Others have protested the shortfalls in negotiations to address the impacts of climate change on the oceans and the role of the shipping industry in the climate emergency. The shipping industry’s annual greenhouse-gas emissions are over 1 billion tons, which would place the shipping industry within the top 10 greenhouse gas emitting countries globally. The BBNJ negotiators have also failed to commit to protecting 30% of the oceans by 2030, a goal advocated for by marine conservationists.
Currently, the draft treaty text focuses heavily on regulating the exploitation of deep-sea animals and other organisms, such as microbes, fish, crustaceans, corals, mollusks, and anemones, for their genetic material. Large corporations have already patented and used this material in pharmaceuticals and biotechnology, and they are looking to expand their bioprospecting operations. The genetic sequences, enzymes, and other genetic resources extracted from these deep-sea organisms have been used in disease research, cosmetic production, and most recently in coronavirus diagnostic tests. While there are real benefits from this research, that is no excuse for unregulated and risky bioprospecting techniques that could cause unintended harms. Deep-sea ecosystems are still poorly understood and corporate overexploitation of fragile ecosystems could lead to sweeping biodiversity losses.
One remaining contentious issue at the BBNJ is the lack of differentiation between “pure” marine scientific research and corporate bioprospecting of deep-sea organisms for commercial gains. While several patents have been registered by universities and public institutions, a single corporation, the German company BASF, has so far registered 47% of the existing marine sequence gene patents.
Still, the draft treaty text is currently heavily bracketed and open for debate. The treaty negotiators must heed calls to more stringently protect other forms of biodiversity in international waters through the BBNJ, such as fish exploited for food and broader marine ecosystems. It would be a wasted opportunity for the BBNJ negotiations to merely maintain the status quo of corporate exploitation of the environment and people in areas officially designated as the “common heritage of mankind” – which all people have the right to benefit from. Instead, these treaty negotiations should be an opportunity to reinforce the international norm that corporations are bound by human rights and environmental obligations and set up strong transparency and accountability mechanisms to tackle corporate abuses on the oceans.
Human Rights on the Oceans
Furthermore, obligations under the BBNJ should not be limited to environmental protection. Human rights commitments and provisions to ensure the safety of workers and fisherfolk on the oceans are essential. Such human rights protections are within the scope of the UNCLOS; Article 146 of the UNCLOS requires states to undertake necessary measures “to ensure effective protection of human life” in areas beyond national jurisdiction and Article 94 requires that states ensure safety at sea, including safety related to labor conditions.
In fact, human rights and environmental protection on the ocean are inseparably linked. The corporate race to the bottom fuels the exploitation of both the environment and laborers, and globalization has allowed companies to develop tangled international supply chains to avoid both environmental and labor laws. Workers in the global ocean economy, particularly migrant workers, are frequently subject to dangerous and unsafe conditions on all types of vessels, including toxic chemicals and fuels. Transshipment at-sea, where vessels will offload cargo, fish catch, and other goods and refuel on the open ocean to avoid returning to port, which can trap workers at sea for months or even years at a time, is among the strategies that companies use to circumvent enforcement. The burgeoning deep-sea bioprospecting industry will likely face the same issues without strong international law provisions, and self-regulation will not be enough.
International efforts to address these human rights abuses have been insufficient. Investigators have found enforcement of international laws such as the Convention on Safety of Life at Sea (SOLAS) to be inadequate and put workers at risk. Workers on fishing vessels have even fewer protections since they are not covered under SOLAS, and often face much more dangerous working conditions. The International Labour Organization (ILO) has highlighted frequent instances of recruitment under false pretenses, debt bondage, physical violence against crewmembers, and even unreported deaths. The ILO’s Work in Fishing Convention has only been ratified by 18 countries and only one regional fisheries management organization has passed any regulations related to human rights at sea. International obligations should include the right to safety protections, adequate living conditions, proper wages, and frequent returns to port.
An Opportunity to Reinforce Corporate Environmental and Human Rights Obligations
Even if strong environmental and human rights protection provisions are included in the final BBNJ, enforcement in international waters is notoriously difficult. Illicit actors often seek to avoid regulatory burdens by operating where local laws are weaker or local governments have less ability to enforce them. Frequently corporations register under so called “flags of convenience” – the flags of countries that are known not to enforce international or domestic laws – since corporations can pay to register under flags far from their corporate headquarters. In response, some treaty negotiators are already attempting to ensure that corporations do not seek “flag of convenience EIAs” through the internationalization of EIA mechanisms.
The BBNJ negotiators should go a step further and ensure that these companies, rather than only the countries where they are based, are bound by BBNJ obligations. This will require enforcement mechanisms specific to corporate actors, which the BBNJ should make a point to create as well. Historically, international law has focused on nation state obligations. However, international law obligations for corporations are not novel, and the UN Guiding Principles on Business and Human Rights have taken steps towards codifying these long-standing norms. The BBNJ treaty is an important opportunity to further encode these obligations, especially as the future of the global oceans depends on reigning in corporate overexploitation.
There is still time for BBNJ negotiators to act to allow this historic treaty to fully meet its potential to protect all life at sea. To do so, the negotiators must address corporate abuses on the oceans.
Chris Ewell is a rising 3L at Yale Law School and a current CAL legal intern.
