The treaty lays down measures to protect biodiversity in two-thirds of the world’s oceans beyond national jurisdictions
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THE text of the United Nations (UN) ‘High Seas Treaty’, a draft international legal framework, was finalised by UN member States on March 4 to ensure the conservation and sustainable use of marine biological diversity outside national boundaries or national jurisdiction. The agreement, a culmination of talks that began as far back as 2004, was reached by delegates of the International Conference on Marine Biodiversity of Areas Beyond National Jurisdiction at the UN headquarters in New York, after almost two decades of negotiation.
What is the objective of the treaty?
The High Seas Treaty represents the first-ever treaty agreed to protect the high seas, or approximately two-thirds of the world’s oceans, also referred to as international waters, from climate change, biodiversity loss and pollution.
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The draft treaty purports to protect the high seas by setting up Marine Protected Areas (MPA) to conserve the loss of wildlife in the oceans, through a new legal framework that did not exist prior to the High Seas Treaty. According to the International Union for Conservation of Nature (IUCN), a ‘protected area’ is defined as “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.”
Marine life and biodiversity is exposed to exploitation and extinction due to overfishing, pollution and exploration activities, particularly deep-sea mining. The draft High Seas Treaty purports to protect the high seas by limiting such activities, in line with conservation aims.
IUCN refers to MPAs as areas of the ocean set aside for long-term conservation aims to support climate adaptation and mitigation. Currently, a mere 1.89 per cent of the ocean is covered by exclusively no-take MPAs that prohibit any fishing, mining, drilling, or other extractive activities.
The treaty allows the means for achieving the goal of protecting 30 percent of the world’s oceans and land by 2030 to safeguard biodiversity, as agreed by the countries at the UN Biodiversity Conference (Conference of the Parties (COP) 15) in Montreal, Canada in December 2022.
The draft treaty was built under the auspices of the UN Convention on the Law of the Sea (UNCLOS), 1982, the international legal agreement that consists of guidelines to deal with marine activities, including marine business and commercial activities. India is a State Party to the UNCLOS.
Article 56 of the UNCLOS provides for a nation’s Exclusive Economic Zone (EEZ), which is 200 nautical miles from the nation’s coastline, offering sovereign rights for exploration, resource exploitation and management, and conservation. Within the EEZ, any country can use the waters for its economic uses.
Beyond the EEZ, however, all the countries have a right to fish, ship and research in international waters or the high seas. This exposes its marine life and biodiversity to exploitation and extinction of marine species due to overfishing, pollution and exploration activities, particularly deep-sea mining. The draft High Seas Treaty purports to protect the high seas by limiting such activities, in line with conservation aims.
What are the main features of the treaty?
Besides designating MPAs, the key features of the draft treaty include sharing profits from the sale of any commercial products that can be traced to the high seas, and sharing marine genetic resources, that is, biological plants and animals from international waters.
The draft treaty mandates programs to conduct marine scientific research in developing countries to facilitate the holistic study of the seas, requiring State parties to ensure international cooperation in marine scientific research, and the development and transfer of marine technology. It also requires preparing environmental impact assessments (EIA) of activities in the areas.
Some notably inclusive aspects of the draft treaty include the mandate for the State parties to take legislative, administrative or policy measures to ensure that traditional knowledge on marine genetic resources held by indigenous people and local communities beyond national boundaries is accessed with their consent. It facilitates full recognition of the special circumstances of small developing States, least developed countries, and landlocked developing countries.
What are the next steps towards the treaty’s implementation?
According to the Vienna Convention on the Law of the Treaties, 1969, a treaty, as a legal agreement, has to fulfil certain criteria – firstly, it has to be binding, that is, the contracting State parties need to create legal rights and duties arising from the agreement. Secondly, it must be concluded by State or international organisations with treaty-making power. Thirdly, the instrument has to be governed by international law.
The fixing of sharing of marine genetic resources among the State parties is not substantiated. The worth of ocean resources is unclear, and hence, how they could be split and shared remains ambiguous.
Thus, although the contents of the draft text of the High Seas Treaty are finalised, before it comes into force, the text of the treaty will be analysed for internal inconsistencies, followed by its translation into the UN’s six official languages. Thereafter, to formally adopt the text, countries will ratify the treaty through their individual domestic processes of passing legislation to give effect to the text. Finally, once the 60th country ratifies the treaty, it becomes international law.
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What are the potential inadequacies in the treaty text?
According to experts, the fixing of sharing of marine genetic resources among the State parties is not substantiated. The worth of ocean resources is unclear, and hence, how they could be split and shared remains ambiguous. Further, since the draft treaty requires countries to conduct EIA of activities in the oceans in cases where the impacts are not known or the marine life is in potential danger, the possibility of the countries basing the final decisions on their own EIAs is pointed out.
Furthermore, British labour economist Guy Standing, author of the book The Blue Commons: Rescuing the Economy of the Sea (2022), has reminded in a recent piece for The Guardian that in 1982, under the UNCLOS, an autonomous international organisation called the International Seabed Authority was established to manage all mineral resources related activities in the international seabed and establish a “benefit-sharing system”. However, 28 years later, no related mechanism has been established and the authority remains underfunded. He also highlighted that the national marine protected areas are rarely protected, with governments supporting exploitative activities; for instance, the British government supporting trawling in its protected areas.
In sum, while the High Seas Treaty is a historic multilateral agreement, its effective implementation needs due focus by the State Parties.
