Incorporating the dynamic and connected nature of the open ocean into governance of marine biodiversity beyond national jurisdiction

CHAPTER 41

Incorporating the dynamic and connected nature of the open ocean into governance of marine biodiversity beyond national jurisdiction ˜o Crespo1 and Patrick N. Halpin1 Daniel C. Dunn1,2, Guillermo Ortun 1

Nicholas School of the Environment, Duke University, Beaufort, NC, United States 2Centre for Biodiversity and Conservation Science, School of Earth and Environmental Sciences, University of Queensland, Brisbane, Australia

Chapter Outline 41.1 This planet is open ocean 425 41.2 Ecological connectivity 427 41.2.1 Oceanographic connectivity 427 41.2.2 Migratory connectivity 428

41.3 Governance of highly connected, dynamic, open ocean ecosystems

429

41.3.1 Area-based management tools 430 41.3.2 Environmental impact assessments 431 41.3.3 Technology transfer and capacity building 432

41.4 Conclusion 433 References 433

41.1 This planet is open ocean The open ocean beyond the continental shelf (Fig. 41.1) accounts for 64% of the planet’s surface. This pelagic realm has more than twice the surface area of all terrestrial biomes combined and 168 times the habitable volume. To put this in perspective, if terrestrial habitats were an ant, open ocean habitats would be the size of a person. The open ocean provides more than US$10 billion in fisheries landings [1], and represents the longest “highways” on the planet, connecting the globe and providing for the transportation of B90% of international trade. Predicting Future Oceans. DOI: https://doi.org/10.1016/B978-0-12-817945-1.00041-1 © 2019 Elsevier Inc. All rights reserved.

425

426 Chapter 41

Figure 41.1 This planet is open ocean. Seventy one percent of the planet is ocean and nearly half of the planet lies beyond national jurisdictions.

Furthermore, the ocean is critical in moderating Earth’s climate. It provides more than half the oxygen we breathe and mitigates impacts from anthropogenic carbon dioxide (CO2) by absorbing 93% of the heat generated by CO2 emissions and 26% of the CO2 gas [2,3]. This climate mitigation service is of enormous value, but the impacts of assimilating that heat and CO2 are strongly altering open/deep ocean environments and ecosystems: accelerating ocean warming, deoxygenation, and acidification, which affect marine life throughout the areas beyond national jurisdiction (ABNJ), by changing species’ distributions, migration routes, ecosystem structures, and functions [4,5]. Climate change induced impacts act synergistically with other impacts from human uses of the ocean, in particular, fisheries. Between 1950 and 1989, industrial marine fisheries catch in ABNJ increased by a factor of more than 40 [1,6]. This growth was an order of magnitude more than the increase in catch within exclusive economic zones (EEZs) during the same time period. Since 1990 high seas marine fisheries catches have remained relatively stagnant [7], but fishing effort, and all concomitant impacts from increasing the amount of fishing gear in the water, more than doubled between 1990 and 2006 [8]. In spatial terms, the greatest expansion of fishing effort during the second half of the 20th century has taken place primarily beyond the limits of the continental shelf and in ABNJ [9]. Long thought to be too big and distant to harm, there is now growing scientific

BBNJ and the open ocean 427 evidence of the impacts of fisheries not just on open ocean species, but open ocean communities and ecosystems [10]. The combination of these impacts with the dynamics of a boundaryless, fluid, and changing ocean are in urgent need of attention from the international community. From the safety of shore, the increasingly strong cumulative impacts of climate change and excessive resource extraction on the open ocean might be easily ignored by the world’s human population, except that the delineation of EEZs is ecologically meaningless. Strong connectivity between the high seas and coastal states’ jurisdictions results in far flung impacts frequently washing up on our shores. The very nature of open ocean ecosystems is that they are defined and constantly influenced by powerful winds and oceanic currents. These systems have no fixed physical boundaries—they move through time and horizontal and vertical space, connecting distant areas with physical flows. Many iconic migratory and pelagic species use these ecosystems as habitat for spawning, breeding, migrating, and feeding; and their movements also connect distant ecosystems and ecological processes.

41.2 Ecological connectivity Ecological connectivity can be broadly categorized into two types: passive and active forms of movement. Oceanographic connectivity is the main form of passive connectivity and relies on ocean currents that drive larval or planktonic dispersal, and which can also transport anthropogenic impacts, such as pollutants, into and out of coastal state waters. Active dispersal, on the other hand, arises from directed movement by, inter alia, seabirds, sea turtles, marine mammals, and fish. This form of dispersal can lead to different types of transboundary movements, from transoceanic migrations through multiple EEZs and the high seas [11], to smaller-scale straddling behavior between an EEZ and the high seas. Many of the animals that engage in this type of movement rely on distinct parts of the ocean to fulfill different annual cycle or life-history stages (e.g., from nesting to foraging). Understanding how populations utilize different spaces across time is essential for the conservation and sustainable use of marine migratory species. Below we describe these two types of connectivity in more detail.

41.2.1 Oceanographic connectivity For many marine species population connectivity is largely determined by ocean currents transporting larvae and juveniles between distant patches of suitable habitat. These longdistance connections often contribute to the genetic stability of populations and metapopulations by periodically providing new recruits from distant sources. The strength of the connections between sites may change intra- or interannually according to major climate cycles such as El Nin˜o or La Nin˜a oscillations [12]. Regional analyses have been

428 Chapter 41 conducted in the South Pacific [13] as well as the Caribbean [14] and have helped to better define the long-distance interdependence of marine ecosystems within these regions. These analyses demonstrate the importance of direct adjacency between near-shore (EEZ) areas and offshore (ABNJ) areas as well as more complicated multipath connections that may span multiple sites and jurisdictions. In addition to planktonic larvae, ocean currents and oceanographic features also transport and redistribute nutrients, heat, and pollutants including marine debris. Marine debris, such as plastics, can impact biological diversity due to entanglement or ingestion. Plastics can also act as vectors for the transport of harmful chemicals, which can have ecological impacts in regions as isolated as the Arctic [15]. Furthermore, other pollutants that make their way into the marine environment, such as oil, can be transported across wide regions by surface currents [16].

41.2.2 Migratory connectivity Animal migration has been broadly defined as persistent, large spatial scale movements to connect discrete home ranges that help fulfill a species’ life-history objectives [17]. Migration is fundamental to marine ecosystem structure given the strong ecological imperative for animal movements to evade predation, to access spatially distributed and seasonal resources, or to access suitable habitats for different life-history purposes. Migratory connectivity emerges from persistent movement between habitat patches and frequently straddles jurisdictional boundaries. Understanding and accounting for the transboundary connectivity of migratory species is essential for their conservation and management. Migration is common among marine species in the open ocean. Lascelles et al. [18] identified a total of 829 migratory marine species of fish, seabirds, marine mammals, and sea turtles occurring and frequently straddling ocean basins, much less jurisdictional boundaries. Satellite technologies have revealed, inter alia, the straddling behaviors of important target species such as bigeye tuna [19] or yellowfin tuna [20], as well as the transoceanic movements of nontarget species such as basking sharks [21], white sharks [22], leatherback sea turtles [23], or wandering albatross [24]. These large-scale movements result in migratory marine species moving across political boundaries on a regular basis: 18 species of marine predator in the Pacific Ocean were found to visit 94% of the EEZs in the Pacific Ocean and spent 14% 33% of their annual cycle in these waters and 53% 76% of the time in the high seas [11]. However, our understanding of marine migratory movements is still poor across taxonomic groups and geographic regions. A review of shark satellite tagging studies in the primary literature revealed that only 15 species of migratory sharks have been studied using this technology, with most of the studies having been conducted in the Pacific Ocean (50%) [25].

BBNJ and the open ocean 429 This illustrates that the remaining B80 species (or 84%) of migratory sharks lack specific information on their migratory/straddling movement patterns [26].

41.3 Governance of highly connected, dynamic, open ocean ecosystems The management and conservation of open ocean ecosystems, and the straddling and highly migratory species that use them, is a serious challenge given the large spatiotemporal distributions of the species, the cost of sampling in distant and or deep locations, and the complexities of coordination among multiple parties across jurisdictional boundaries. In 2011 the Food and Agriculture Organization (FAO) estimated that straddling stocks were overfished or experiencing overfishing at a rate twice that of stocks within national jurisdictions (64.0% vs 28.8%). Similarly, an assessment of the 48 migratory fish stocks managed by the world’s tuna Regional Fisheries Management Organizations (RFMOs) concluded that 67% of these were either overfished or depleted. Chondricthyans, the most threatened vertebrate group [27], show a similar pattern. Only 14% of nonmigratory sharks were threatened (Vulnerable, Endangered, or Critically Endangered under IUCN Red List) whereas 46% of the 95 migratory sharks are threatened, with a further 21% assessed as Near Threatened [26]. To conserve and sustainably use the open ocean of ABNJ, governance measures need to account for both the dynamic nature of the system and the connectivity that it generates. Significant gaps and deficiencies plague the current network of governance structures in charge of conserving and managing biotic resources in the open ocean. While existing tuna RFMOs cover almost the entirety of ABNJ, the spatial coverage of nontuna RFMOs is still alarmingly patchy, which results in the unmonitored and unmanaged exploitation of large areas of the open ocean [28]. Similarly, even more serious taxonomic gaps exist in international fisheries management [29]. Management of shipping lacks any spatial management in ABNJ, while cables have no governance structure under the United Nations at all. Deep-sea mining has been governed in a more proactive manner, including the development of regional environmental management plans including setting aside 30% of a region for conservation purposes, but the leasing of the seabed for exploration contracts before such plans are in place has led to suboptimal results [30]. Finally, only three Regional Seas Organizations have a mandate to address ABNJ, leaving sector-based management with no partner governing biodiversity in most parts of the open ocean [28]. Recognizing many of the potential limitations of the collage of ocean management bodies for the conservation and sustainable use of biodiversity in the high seas, the international community began a process in 2005 to assess whether the existing regional and sectoral governance scheme for marine biodiversity beyond national jurisdiction (BBNJ) was sufficient. After a decade of discussions, the UN General Assembly (UNGA) passed Resolution 69/292, stressing the need for the establishment of a global regime to better

430 Chapter 41 manage and conserve BBNJ (UNGA 69/292; [31]). After another 2 years of developing substantive recommendations on the elements of a draft text of an international legally binding instrument (ILBI) through a Preparatory Committee (PrepCom), the UNGA passed Resolution 72/249 calling for the opening of an Intergovernmental Conference to negotiate the new ILBI. Since 2011 there has been consensus to address a “package” of four elements in the ILBI which must be addressed “together and as a whole”: (1) marine genetic resources, including questions regarding the sharing of benefits; (2) area-based management tools (ABMTs), including marine protected areas (MPAs); (3) environmental impact assessments; and (4) capacity building and the transfer of marine technology. Below we outline how consideration of well-connected and dynamic pelagic systems can be incorporated into three elements of the BBNJ package:

41.3.1 Area-based management tools Potential ABMTs include marine spatial planning, individual and networks of MPAs, as well as sectoral measures such as areas closed to some or all fishing, mining, navigation, discharge activities, or increased reporting requirements. As stated in the PrepCom 3 Chair’s overview, there is a need to define ABMTs and their objectives as they relate to the conservation and sustainable management of static and dynamic biodiversity in ABNJ. As described earlier, the high seas provide critical habitat for migratory species, which make use of open ocean ecosystems to fulfill different annual or life cycle stages. There is widespread evidence that many target and nontarget oceanic species track dynamic oceanographic features such as frontal zones or eddies, which are becoming increasingly easier to track and predict [32,33]. The wide-ranging and dynamic distribution not just of those species, but of the ecosystems they utilize means that ABMTs for their conservation may need to be sufficiently “fluid” to track their changing distributions. Two approaches to dealing with this fluidity have been put forward: large MPAs ( . 10,000 km2; [34]), and dynamic ocean management [35,36] which allows for real-time shifting of the ABMT boundary based on environmental or socioeconomic conditions. ABMTs, and MPAs in particular, are frequently cited as being part of a precautionary approach to management. The role of MPAs within a precautionary approach is not as a measure to be enacted in reaction to a past event with ecological impact, but as proactive insurance against unknowns in the system and errors in governance. To play this role, they should be in place before evidence of harm is found. In addition to their role in providing proactive protection in advance of harm, ABMTs can be used to build resilience and to mitigate the cumulative and synergistic impacts of human uses and climate change. For ABMTs to be effective as a precautionary measure, it is critical that monitoring programs are in place that can adequately measure environmental changes. The scale and variability of open ocean ecosystems require that the monitoring mechanisms be put in place at

BBNJ and the open ocean 431 regional or global scales and be sustained over longer time periods than may be necessary in static systems. While challenging, this is the only way to differentiate local or short-term variability from true impacts to the ecosystem. One major challenge to meeting this requirement for monitoring of open ocean ecosystems to be long term and over large scales comes from the diverse mandates for ecosystem monitoring in ABNJ. While RFMOs have a duty to monitor ecosystem components “associated with” target species, that does not implicate them in the monitoring of all BBNJ. Furthermore, even if RFMOs chose to tackle monitoring of all BBNJ, strong coordination is needed not just among tuna RFMOs (as represented by the advent of the Kobe process), but among all organizations with competency for managing open ocean ecosystems. A common concern across all organization with competency in ABNJ is that comprehensive monitoring of biodiversity cannot occur without vast increases in current budgets [10]. Coordination of large-scale biodiversity monitoring through programs like the Global Ocean Observing System is critical to provide ecosystem-level observing more efficiently. An equally critical element to support effective monitoring is technology transfer and capacity building to developing states. We address these issues below to support monitoring through technology transfer and capacity building. Only by increasing cooperation and collaboration among competent organizations, industry, and academia, along with other civil society, will appropriate monitoring of the open ocean ecosystems be available to underpin effective development and management of ABMTs in open ocean ecosystems.

41.3.2 Environmental impact assessments Ecological impacts on the deep seabed (e.g., changes in species abundance; destruction of benthic habitat) are relatively static. Conversely, ecological impacts on pelagic species, communities, or ecosystems move across the ocean as their distributions in ABNJ and EEZs change. A 2006 FAO of the United Nations report on the state of migratory straddling and high seas stocks identified up to 226 highly mobile open ocean species (Chondrichthyes and Osteichthyes), while a later Convention on the Conservation of Migratory Species of Wild Animals (CMS) and United Nations Environment Program report identified 153 migratory or potentially migratory chondrichthyan fishes [26,37]. Furthermore, a 2014 study identified 319 seabird species and 102 marine mammal species which are migratory, highly migratory, or very highly migratory [18]. These highly mobile species contribute to the ecological, social, and economic stability of socioecological systems both within and beyond national jurisdictions. Therefore any changes to the diversity, abundance, or range of these highly mobile species, and the subsequent impacts of these changes, should be tracked and assessed. If species which migrate between coastal and oceanic ecosystems are severely depleted during their residency in the open ocean, such changes will later affect ecological

432 Chapter 41 relationships in coastal ecosystems. Aware of the dynamic and even transboundary nature of many open ocean species and ecosystems, and the consequent mobile nature of negative ecological impacts, various delegations throughout the second and third PrepComs expressed interest in ensuring that EIAs account for the mobility of impacts by developing transboundary environmental impact assessments (TEIAs). In the second PrepCom the African Group took a further step and opined that the ILBI should also cover activities within EEZs with impacts in ABNJ and vice versa. Other coastal states, such as the Pacific Small Island Developing States, advocated for TEIAs as a way to monitor impacts of high seas activities on adjacent coastal nations. TEIAs are particularly relevant for regions such as the Costa Rica Thermal Dome or the Sargasso Sea, among others, which move, expand, and contract across jurisdictional boundaries. In these scenarios, conservation and management measures in ABNJ will have direct implications for the resilience and health of biodiversity and ecosystems within EEZs, and vice versa.

41.3.3 Technology transfer and capacity building The importance of capacity building and the transfer of technology is clearly a priority for numerous states, as reflected in the Chair’s overview of the second session of the Preparatory Committee (http://www.un.org/depts/los/biodiversity/prepcom_files/ Prep_Com_II_Chair_overview_to_MS.pdf). To quote G77 and China, the scope of capacity building and technology transfer in a new instrument should include “establishment or strengthening the capacity of relevant organizations/institutions in developing countries to deal with conservation of marine biological diversity in ABNJ; access and acquisition of necessary knowledge and materials, information, data in order to inform decision making of the developing countries.” The CARICOM countries apply this more directly to monitoring, stating that the scope should include “[c]apacity building for development, implementation and monitoring of ABMTs including MPAs.” Given differences in capacity for monitoring between regions and states, capacity building and technology transfer to support monitoring, as well as minimum monitoring standards across RFMOs and other international organizations could be an important component of the new ILBI. The distant, deep, and dynamic nature of open ocean ecosystems requires ambitious commitments to monitoring as laid out above. Since open ocean systems make up the vast majority of areas to be governed under any new ILBI, the success of the ILBI may be highly dependent on strong commitments regarding technology transfer and capacity development in support of monitoring open ocean ecosystems, particularly to developing states. While much discussion of frameworks, modes and types of capacity building, and technology transfer have been discussed at the PrepCom meetings, various stakeholders, including civil society and academia, could play increasingly important roles in the implementation of any capacity building and technology transfer commitments [29]. This

BBNJ and the open ocean 433 support can come from, for example, civil partnerships providing technical expertise by working directly with individual governmental or intergovernmental organizations, creating a task force of several countries that share information with each other, or by simply making the fishing data of ABNJ transboundary species freely available. Such partnerships will complement more traditional multilateral and bilateral technology transfer and capacity building approaches.

41.4 Conclusion Conservation and sustainable use of marine biodiversity in ABNJ is dependent on governance that can account for the nature of the systems therein. Pelagic open ocean ecosystems in ABNJ are characterized by their dynamism and the connectivity it generates. With increasing impacts being felt from both resource extraction and climate change, the need for comprehensive (i.e., geographically and taxonomically) and nimble governance structures in ABNJ has reached a critical juncture. The intergovernmental conference to negotiate a new treaty for BBNJ is thus very timely. To fully meet the challenge and provide a more holistic governance structure for BBNJ, connectivity and the fluidity of the pelagic environment should be addressed within each of the package elements. The scale of the open ocean is orders of magnitude different than terrestrial ecosystems and, together with its dynamic nature, requires longer-term and larger-scale monitoring to understand the changes in the system. Those requirements underpin an enhanced need for increased and innovative capacity building and technology transfer. Connectivity generated by physical flows and migratory behaviors results in impacts being felt far from their source. Finally, the assessment of potential impacts from activities in ABNJ should therefore include any teleconnections within their scope including transboundary connections.

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