The High Seas Treaty: A Major Advance in Ocean Governance

Article by Archana Nair

Oceans cover approximately 70% (roughly 381 million square kilometres) of the Earth’s surface and contain about 97% of our planet’s available water. Despite this domination, the protection of the oceans is constantly undermined. This weakness is exacerbated when it comes to the sustainable use and conservation of marine biodiversity in areas beyond national jurisdiction – known as the high seas, which up until now, has been essentially lawless. In light of this, members of the United Nations, via an Intergovernmental Conference on 4th March 2023, formulated the High Seas Treaty (also known as the Biodiversity Beyond National Jurisdiction Treaty) after almost two decades of negotiations. The Treaty is now an official instrument of the United Nations Convention on Laws of the Sea (UNCLOS) and plugs an existing gap in the governance of the high seas by enhancing the geographical scope of the Treaty. 

Background and Aim

Following preparatory discussions, the United Nations started formal negotiations reaffirming the urgency to conserve and ensure the sustainable use of marine biodiversity in areas beyond nation states’ 200 nautical mile exclusive economic zones. This mainly stemmed from the lack of international protection afforded to the high seas, which put numerous rare and vulnerable ecosystems at risk. At the same time, very few management organisations focused on conserving the area due to a lack of knowledge and certainty, thereby adversely impacting governance. In their assessment of global marine species, the International Union for Conservation of Nature (IUCN) concluded that around 10% were at risk of extinction and around 41% of threatened species are negatively affected by climate change. Felix Beyers from the Institute of Sustainability Governance, therefore, claims that the Treaty’s introduction could not have come at a better time. 

The main aim of the Treaty is to put international waters within the ambit of protected areas in order to help countries achieve the goal of protecting 30% of the world’s oceans by 2030 (also known as 30 by 30) adopted as part of the Kunming-Montreal Global Biodiversity Framework. Environmental groups have repeatedly voiced concerns over the exploitative repercussions of human activities, such as deep sea bed mining in the high seas, as they can damage breeding grounds and lead to noise pollution. Hence, the Treaty purports that activities can occur in such areas but only as long as it is consistent with conservation objectives – meaning it does not negatively impact marine life. 

Direction of Travel – Key Elements and Impact on Ocean Law

The High Seas Treaty puts in place a legally binding International Treaty to protect International waters, which is of paramount importance. According to the Caribbean Natural Resources Institute (CANARI) in Trinidad and Tobago, “What happens in international waters affects all of us—it affects the biodiversity and health of our national waters, livelihoods of coastal communities, and economic sectors such as tourism and shipping.” Ergo, the necessity of the Treaty is well evidenced. 

The Treaty complements UNCLOS and is now proclaimed to be the “Constitution for the Ocean”. The Treaty has four key objectives, echoing various multilateral environmental agreements in terms of establishing a mechanism for compliance and enforcement and providing advisory opinions on legal questions. The objectives are outlined below: 

(a) Ensure the implementation of sustainable practices with regard to marine genetic resources, including explicit disclosure of the sharing of benefits- The Treaty aims at fair and equitable sharing of monetary benefits from the use of genetic digital sequence information for pharmaceuticals, cosmetics, biotechnology etc. Annual benefits are currently valued at around $6 billion. Nonetheless, concerns have been raised over deciding how to share marine genetic resources and annual profits fairly. This is a limitation that is yet to be resolved. 

(b) Introduce measures such as area-based management tools, including Marine Protected Areas (MPA) – Whilst MPA will be approved and voted upon by signatories, non-parties are not discharged from the obligation to cooperate. 

(c) Design global standards on Environmental Impact Assessments (EIA) for commercial activities carried out in the oceans – EIA reporting and monitoring will be carried out by states wishing to use specific areas of the High Seas along with the requirement to adapt to new developments out forth by science. 

(d) Establish capacity building, including the transfer of marine technology and cross-cutting issues – The Treaty provides for a Capacity Building and Technology Transfer Committee and an Implementation and Compliance Committee, which are reviewed by the Conference of the Parties. 

The inclusion of unequivocal objectives within the Treaty, especially with reference to EIA and MPA, will have a major impact on commercial operations such as fishing, developing offshore wind farms and deep seabed mining. Whilst there is still time for States to ratify the Treaty and transpose it into national law, businesses cannot afford to be complacent- denoting a positive step forward in the governance of the oceans, which arguably is the most recent evolution of the international law of the sea. In the same vein, the European Union has pledged €40 million as part of its Global Ocean Programme. 

Conclusion

It is well demonstrated that the High Seas Treaty puts sustainability at the forefront and provides invaluable social, ecological and food security benefits. At the same time, it also serves as a robust model for future legislation covering planetary common heritage in the interest of current and future generations. Despite these perceived boons, true success will ultimately depend on how States use the Treaty to challenge the carnage that occurs offshore and demonstrate that multilateral international cooperation still exists. 

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