Lawtitude

INTRODUCTION

The implementation of the High Seas Treaty, a significant legal framework for protecting seas, by the United Nations through consensus in June 2023, after more than a decade of discussion, marks a remarkable advancement for marine protection. The High Seas Treaty, also known as Biodiversity Beyond National Jurisdiction (BBNJ), fills a critical gap left by the United Nations Convention on the Law of the Sea (UNCLOS) adopted in 1982, which lacked comprehensive coverage of the high seas. Notably, only 1% of the high seas were protected under existing treaties, leaving a substantial portion unregulated.

To address this, the United Nations General Assembly established a preparatory committee in 2015, leading to the convening of an Intergovernmental Conference (IGC) tasked with developing a new international legally binding instrument under UNCLOS for the conservation and sustainable use of marine biological diversity beyond national jurisdiction. The BBNJ treaty was officially adopted during the fifth session of the IGC at the UN headquarters.

This research article highlights the critical need for a comprehensive legal framework to regulate the high seas, emphasizing the global significance of the High Seas Treaty in bridging governance gaps and promoting marine conservation. The treaty’s adoption signifies a pivotal moment in global ocean management, setting the stage for enhanced protection of marine resources and biodiversity. The article underscores the importance of swift ratification by member states to ensure the treaty’s effectiveness and emphasizes the necessity of coordinated efforts across sectors to uphold the treaty’s objectives and monitor its impact on ocean life and sustainability.

What is New About this Treaty?

The High Seas Treaty, a long-awaited milestone, represents the inaugural cohesive, international, and legally binding framework designed to safeguard the High Seas ecosystem. Its emergence aligns aptly with the global commitment to combat the impacts of climate change, a critical juncture as the ocean absorbs slightly over 25% of carbon dioxide emissions, leading to rising acidity levels, diminished productivity, and the imperilment of specific species and ecosystems. Notably, approximately 66% of oceanic areas fall under the high seas classification, characterized by a lack of regulatory oversight, fostering an environment of lawlessness.

Article 3 of the treaty delineates its overarching objective, emphasizing the conservation and sustainable utilization of marine biological diversity beyond national jurisdiction. While the exclusive economic zone (EEZ) is subject to state regulation, the absence of governance beyond the EEZ exposes a multitude of marine organisms to significant anthropogenic pressures. This treaty serves as a pivotal instrument in achieving the 30 by 30 target established during the recent COP 15 Biodiversity Summit, ensuring the equitable and just distribution of benefits derived from Marine Genetic Resources (MGR).

Moreover, this treaty is poised to empower developing countries by providing them with a fair and equitable share of both monetary and non-monetary benefits from marine resources. By vesting authority in the Access and Benefit-Sharing Committee, the treaty guarantees the equitable utilization of marine resources. Furthermore, it aims to bolster the marine scientific and technological capabilities of developing nations, enhancing their capacity to regulate activities in areas beyond national jurisdiction.

A notable feature of this treaty is the establishment of Marine Protected Areas (MPAs) across the high seas, crucial for preserving the marine environment by prohibiting human exploitation. The High Seas Alliance has identified eight new high seas MPAs, including the Saya de Malha Bank in the Indian Ocean. The treaty provides a comprehensive framework for the implementation, monitoring, and review of MPAs, underpinned by a commitment to support developing countries in their development, monitoring, and management through capacity building and technology transfer.

Environmental Impact Assessments (EIAs) are mandated to assess the cumulative impacts of various activities on the high seas, with a focus on transparency and public disclosure to mitigate adverse effects on ocean health. Ultimately, the treaty aims to foster harmonious global practices through equitable benefit distribution, enhanced transparency, and the creation of a level playing field for both developed and developing nations.

The Treaty’s Triple Objective-

The High Seas Treaty describes a strategic framework for the conservation of marine resources, particularly through the establishment of Marine Protected Areas (MPAs) beyond national jurisdiction. This treaty is a pivotal step towards regulating nearly two-thirds of the high seas that have remained inadequately governed. Noteworthy provisions within the treaty include a robust monitoring and evaluation system for the exploration of marine genetic resources on the high seas, alongside the implementation of an Environmental Impact Assessment (EIA) mechanism to promote sustainable practices. The mandatory nature of the EIA in international legislation signifies a significant advancement in marine resource management.

Furthermore, the treaty underscores the principle of equity in marine resource utilization, emphasizing the equal sharing of profits derived from oceanic resources. By fostering fair distribution, the treaty dismantles monopolistic control over shared resources, empowering lower- and middle-income countries to maximize benefits from the high seas. This equitable approach levels the playing field, previously dominated by major economies, ensuring broader access and participation in oceanic resource utilization.

Crucially, the treaty addresses the pivotal aspect of finance through its comprehensive financial framework outlined in Part VII. This section outlines the establishment of various accounts, including Voluntary Trust Funds, Special Funds, and Global Environment Facility Trust Funds. These financial mechanisms aim to support the conservation and sustainable use of marine biological diversity beyond national jurisdiction, as well as fund rehabilitation and ecological restoration efforts. Notably, revenues generated from Marine Genetic Resources (MGR) and Deep Seabed Mining (DSM) activities will contribute to these accounts, enhancing implementation efforts. These funds are open to public and private donations, including contributions from enterprises and donors, ensuring a robust financial foundation for the treaty’s objectives.

In essence, the triple objective of the treaty encapsulates a comprehensive approach towards marine conservation, equitable resource utilization, and robust financial mechanisms, setting a new standard for global ocean governance and sustainability.

Conclusion

The implementation of this treaty presents a significant opportunity to enhance high seas governance, fostering the restoration of marine health and mitigating the impacts of overfishing and climate change. However, the path to full realization requires ratification, a process historically known for its complexity and time investment, as evidenced by the 12-year journey of UNCLOS to ratification. As stipulated in Article 61, the treaty necessitates ratification by 60 countries to achieve the critical milestone of “entering into force.”

Addressing the nuanced dynamics between the fishing industry and Marine Protected Areas (MPAs) is paramount, necessitating a reevaluation to garner industry support for the treaty’s objectives. Potential concerns from fishing-dependent nations and industries highlight the need for strategic engagement to align interests with the treaty’s conservation goals. While the treaty does not explicitly prohibit commercial fishing, it incorporates provisions for sustainable ocean use, emphasizing the importance of balancing conservation efforts with economic activities. Nonetheless, the treaty holds good on several factors such as introducing EIA, rolling out new MPAs, sharing of benefits derived from ocean and its resources.