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1982 UNCLOS +30: Confronting New Complexities in the Protection of Biodiversity and Marine Living Resources in the High Seas

Hardin's now classic "tragedy of the commons" would appear to be unfolding on the high seas today. We are depleting living marine resources faster than nature can restore them. Seamounts that are biological hotspots providing habitat to discrete fish stocks such as the valuable orange roughy are under threat. With their promise of untold biological and marine genetic riches, deep-sea hydrothermal vents are at risk from unregulated exploitation. In the quest to tackle the apocalyptic threat of unmitigated climate change, the oceans are regarded as open laboratories to be used for large-scale geo-engineering projects. The challenge of protecting the high seas is complex and, according to scientific reports, necessary. The legal regime of the high seas is a foundational issue for the law of the sea. The Third United Nations Conference on the Law of the Sea (UNCLOS III) brought significant changes to the then-existing high seas regime by expanding the maximum breadth of the territorial sea to 12 nautical miles (nm). Most significant was the creation of the exclusive economic zone (EEZ), an entirely new maritime zone that extended coastal state sovereignty rights up to 200nm beyond the baselines from which the breadth of the territorial sea is measured. The high seas area was further reduced with the new regime of the Common Heritage of Mankind (CMH) for mineral resources in the deep seabed and ocean floor and subsoil beyond national jurisdiction, known as "the Area." The common thread in extending the reach of national jurisdiction was to give coastal states greater control to conserve and manage valuable resources of the seas and to protect the marine environment from the increasing threats caused by human activities. The CHM was driven by the demands for equitable access by developing countries to the rich mineral resources of the deep seabed and ocean floor beyond national jurisdiction. Thirty years later, new challenges for the high seas have emerged in addition to the old ones left unresolved. Challenges include the protection of discrete high seas fish stocks; vulnerable deep-sea marine habitat and biodiversity found in high seas seamounts; hydrothermal vents and cold-water coral reefs; regulation of high seas marine genetic resources and marine bio-prospecting activities; marine scientific research activities; marine debris; underwater noise pollution; invasive species; offshore oil activities; adverse impacts of climate change, including unregulated geo-engineering activities; carbon dioxide sequestration; and more.