Insights Into the New ‘High Seas’ Treaty
-Jaibatruka Mohanta* & Abhinav Kumar Singh**
‘The ocean is the lifeblood of our planet. And today, you have pumped new life and hope to give the ocean a fighting chance. You have delivered. And you have done so at a critical time,’ – UN Secretary-General António Guterres told delegates.[1]
The United Nations (UN) ‘Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ)’ has adopted a historic long-awaited “Maritime Biodiversity Treaty”,[2] also called the “High Seas Treaty”.
It is an internationally legally binding instrument under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which aims to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. It is the first-ever pact to govern and protect international waters. It will be opened for signatures on September 20, during the annual meeting of world leaders at the UN General Assembly. The treaty will take effect once it is ratified by 60 countries.
Background of the High Seas Concept
The closed seas concept proclaimed by Spain and Portugal in the fifteenth and sixteenth centuries, and supported by the Papal Bulls of 1493 and 1506 dividing the seas of the world between the two powers, was replaced by the notion of the open seas and the concomitant freedom of the high seas during the eighteenth century.[3] The essence of the freedom of the high seas is that no state may acquire sovereignty over parts of them. This is the general rule, but it is subject to the operation of the doctrines of recognition, acquiescence, and prescription, where, by long usage accepted by other nations, certain areas of the high seas bounding on the territorial waters of coastal states may be rendered subject to that state’s sovereignty. This was emphasized in the Anglo-Norwegian Fisheries case.[4]
According to classical doctrine, the high seas are free and a common heritage of mankind and may not be apportioned by any one nation. At present, freedom of the high seas is a universally recognized principle and the regime of the high seas continues to be characterized by commonage and freedom, but commonage does not mean that all States are free to take the resource of the sea and the seabed, and freedom is subject to increasing international regulation. It becomes necessary to adopt the traditional doctrine of the freedom of high seas to the present times and circumstances so as to accommodate the interests of the developing and developed countries.
Thus, ‘High seas’ are that part of the sea which are beyond the national jurisdiction. Article 86[5] (under PART VII) of the 1982 UNCLOS explains the concept of high seas as all parts of the sea that are not included in EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Article 87[6] provides that the high seas are open to all States and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law.
The new ‘High Seas’ treaty gives effect to Articles 116 to 120[7] of the 1982 UNCLOS (Section 2 of PART VII), which talks about the conservation and management of the living resources of the high seas.
The doctrine of the freedom of the high seas enshrined in the UN UNCLOS has given rise to a phenomenon called the ‘tragedy of the commons’, referring to situations where shared resources are depleted as private actors pursue their self-interest at the expense of the common good.[8] The freedom of States to carry out extensive fishing activity on the High Seas is probably the most problematic factor when it comes to marine biodiversity conservation. The unregulated and intensive fishing practices not only deplete the fish population but also reduces the genetic resources of the marine ecosystem.
The UN Biodiversity Framework
The Convention on Biological Diversity (CBD), a legally binding treaty to conserve biodiversity, since its inception in 1992, has been on a continuous mission. It has adopted multiple strategic plans to measure progress on the protection of biodiversity and set new global targets. Gradually, the language has grown more urgent as a consequence of the accelerating rate of biodiversity loss, and more emphatic about the need for strong and extensive measures to prevent irreparable damage to global biodiversity.
Hence, the latest of these measures include the “Kunming-Montreal Global Biodiversity Framework” (GBF), adopted at COP15 to UN CBD. It incorporates 4 goals and 23 targets for achievement (building on the 20 Aichi targets agreed in 2011), to protect 30% of the world for nature by 2030. The most well-known of them, the ‘30 by 30’ pledge, refers to a commitment to protect at least 30% of the world’s terrestrial and marine areas by 2030.[9]
To realize the ‘30 by 30’ pledge, one significant step was taken with respect to the conservation of marine areas in the form of the landmark “Maritime Biodiversity Treaty”.
The Treaty
Article 2[10] of the treaty set out the general objective to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term. To achieve this objective, parties shall be guided by certain principles and approaches.[11] For the purpose of the treaty, the parties shall conserve and sustainably use areas requiring protection, including through the establishment of a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas, and also to protect, preserve, restore and maintain biodiversity and ecosystems.[12]
Article 11 provides that activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction are in the interests of all States and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into particular consideration the interests and needs of developing States.[13]
Article 13 protects the rights of the indigenous people. It states that parties shall take legislative, administrative or policy measures, where relevant and as appropriate, with the aim of ensuring that traditional knowledge associated with marine genetic resources in areas beyond national jurisdiction that is held by Indigenous Peoples and local communities shall only be accessed with the free, prior and informed consent or approval and involvement of these Indigenous Peoples and local communities. Access to such traditional knowledge may be facilitated by the Clearing-House Mechanism. Access to and use of such traditional knowledge shall be on mutually agreed terms.[14]
An access and benefit-sharing committee is established under Article 15. It shall serve, inter alia, as a means for establishing guidelines for benefit-sharing, per Article 14, providing transparency, and ensuring a fair and equitable sharing of monetary and non-monetary benefits.[15]
Article 17 lays down measures for Marine Protected Areas. The objective is to Conserve and sustainably use areas requiring protection, including through the establishment of a comprehensive system of area-based management tools, with ecologically representative and well-connected networks of marine protected areas.[16]
Article 28 of the treaty states that parties shall ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction are assessed as set out in this Part before they are authorized.[17]
Article 51 of the treaty establishes a clearing house mechanism that shall serve as a centralized platform to enable Parties to access, provide and disseminate information with respect to activities taking place pursuant to the provisions of this Agreement including information about marine genetic resources.[18]
Article 52 of the treaty is a provision of funding to help developing countries implement the treaty. The article states that each Party shall provide, within its capabilities, resources in respect of those activities that are intended to achieve the objectives of this Agreement, taking into account its national policies, priorities, plans, and programs.[19]
The treaty also considers the special circumstances facing small-island and landlocked developing nations.
Why the Treaty is critical for the World?
While the States are responsible for the conservation and management of the marine ecosystem under their national jurisdiction, the treaty has now provided added protection to the high seas from unsustainable fishing ventures and marine degradation activities like marine pollution.
The ocean absorbs about 30% of the carbon dioxide (CO2) that is released in the atmosphere. As levels of atmospheric CO2 increase from human activity such as burning fossil fuels (e.g., car emissions) and changing land use (e.g., deforestation), the amount of carbon dioxide absorbed by the ocean also increases, which results in ocean acidification.[20] Climate change and ocean acidification affects marine ecology and fuels rise in sea temperature which causes sea level rise, and phenomenons like frequent and erratic cyclones and storms. The treaty addresses this concern by forming an integrated approach to ocean management, thereby helping in building ecosystem resilience to tackle the adverse effects of climate change.
At least 14 million tons of plastic end up in the ocean every year, and plastic makes up 80% of all marine debris found from surface waters to deep-sea sediments. Plastic pollution threatens food safety and quality, human health, and coastal tourism, and contributes to climate change.[21] The treaty contains provisions like the polluter-pays principle, precautionary principle, and dispute settlement mechanisms, which will substructure the marine pollution control initiatives. The environmental impact assessment of the area beyond national jurisdiction will help in undertaking an organized activity. This will ensure that the oceans shall remain clean and pollution-free.
Over 3 billion people rely on the oceans and seas and their resources. Nearly 60 million people are involved in fisheries and aquaculture. About 97% of the world’s fishermen live in developing countries. Fishing is a major source of food and income to them. Today, close to 90% of the world’s marine fish stocks are fully exploited, overexploited or depleted. Basically we have reached the limits of perhaps one of the last natural harvesting human activities on the planet.[22] To tackle this, the treaty underlines the importance of capacity building and transfer of marine technology, including strengthening of institutional capacity and national regulatory frameworks. It will also develop collaboration between regional fisheries management organizations.[23]
Analysis of the Treaty
The first and most important thing to do is to ratify the treaty, which will put the treaty into effect. Further, a consensus among parties is necessary here.
Further, the High Seas support an incredible abundance of marine life, providing migratory routes for whales and sharks, and harbouring remarkable ecosystems such as deep-water corals, but only 1% of the high seas are protected, so we need to get started on fixing this. New High Seas Marine Protected Areas (MPAs) should be demarcated for the conservation of vulnerable ecosystems. There is also a pressing need to set up institutional arrangements, which is imperative to govern and protect marine biodiversity beyond national jurisdiction.
The treaty does not set rules and regulations for mining at sea. It will not on its own stop deep-sea mining in the area. The International Seabed Authority (ISA) that regulates deep-sea mining must also work in cooperation with the Treaty.
In pursuance of the above, this new Treaty does not by itself protect 30% of the High Seas. What it does is, it provides the rules and processes that were previously lacking to establish MPAs on the High Seas. Therefore, as the High Seas make up two-thirds of the Ocean, it is important to ensure large areas are also protected, which will be a key contribution to achieving the 30×30 target.
Conclusion
This new ‘High Seas’ Treaty addresses many of the governance gaps that have plagued the ocean, setting out clearer ways to conserve biodiversity in the High Seas.
The new treaty “is critical to addressing the threats facing the ocean, and to the success of ocean-related goals and targets, including the 2030 Agenda”, the UN chief said. The treaty will help in fulfilling SDG Goal 14 targets, which is one of the pivotal target goals of Sustainable Development.
The treaty has the potential to contribute to the conservation and sustainable use of marine biodiversity by playing a coordinating role and strengthening, enhancing, and promoting cooperation among existing legal instruments and frameworks and relevant global, regional, subregional, and sectoral bodies. The treaty, for instance, outlines a process for establishing area-based management measures in the high seas, such as marine protected zones. By doing so, the treaty may help advance the Kunming-Montreal aim that calls for the protection of 30% of the planet’s terrestrial and marine habitats by 2030. An ocean ecosystem with such a high level of protection would be more thriving, resilient, and less susceptible to extinction. It would also encourage ocean recovery.
Lastly, the ability of nations to unite behind this new instrument for the oceans is undoubtedly a victory for multilateralism at a time when so many other multilateral agreements are failing to come to fruition. The approach taken by the negotiators was one of compromise and settlement. The poor world finally heaved a sigh of relief once the required benefit-sharing agreements were accepted, and all the negotiators could rejoice. Nothing was unsolved or left open. That is unquestionably a victory for multilateralism and renews trust in humanity and the UN’s capacity to unite peoples behind common causes.
‘It is a curious situation that the sea, from which life first arose, should now be threatened by the activities of one form of that life. But the sea, though changed in a sinister way, will continue to exist: the threat is rather to life itself.’
– Rachel Carson, Marine Biologist
*Jaibatruka Mohanta, Research Fellow, CEERA-NLSIU.
**Abhinav Kumar Singh, Student LL.B., Law Centre – I, Faculty of Law, University of Delhi.
[1] UN PRESS RELEASE, https://press.un.org/en/2023/sgsm21845.doc.htm (last visited Jun. 21, 2023).
[2] UN General Assembly, ‘Draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ (4 March 2023) (High Seas Treaty).
[3] Ninth Edition MALCOLM N. SHAW, INTERNATIONAL LAW 1541 (Cambridge University Press 2021).
[4] Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116.
[5] United Nations Convention on the Law of the Sea, 1982, Article 86.
[6] United Nations Convention on the Law of the Sea, 1982, Article 87.
[7] United Nations Convention on the Law of the Sea, 1982, Article 116 to 120.
[8] Garrett Hardin, ‘The Tragedy of the Commons’ Science 162 (3859) (1968).
[9] Kunming-Montreal Global Biodiversity Framework (n 1) target 3.
[10] Supra, Article 2.
[11] Supra, Article 5.
[12] Supra, Article 14.
[13] Supra, Article 11.
[14] Supra, Article 13.
[15] Supra, Article 15.
[16] Supra, Article 17.
[17] Supra, Article 28.
[18] Supra, Article 51.
[19] Supra, Article 52.
[20] NOAA, https://www.noaa.gov/education/resource-collections/ocean-coasts/ocean-acidification (last visited Jun. 21, 2023).
[21] IUCN, https://www.iucn.org/resources/issues-brief/marine-plastic-pollution (last visited Jun. 21, 2023).
[22] UNCTAD, https://unctad.org/news/man-made-tragedy-overexploitation-fish-stocks (last visited Jun. 21, 2023).
[23] UN NEWS, https://news.un.org/en/story/2023/06/1137857?_gl=1*11bwzsl*_ga*ODgzNTg1ODAxLjE2ODcyNDU4MzI.*_ga_TK9BQL5X7Z*MTY4NzMyMDQ2OS4yLjEuMTY4NzMyMTMyOC4wLjAuMA.. (last visited Jun. 21, 2023).