Deborah Rowan Wright – A look at the UN High Seas Treaty – Apr 2023

Late on Saturday March 4th at the United Nations headquarters in New York, delegates finally agreed an ‘international legally binding instrument’ for the conservation and sustainable use of biodiversity in the high seas – known as the High Seas Treaty (or the BBNJ Treaty, which stands for ‘biodiversitybiodiversity Biological diversity in an environment as indicated by numbers of different species of plants and animals. beyond national jurisdiction’). It’s a welcome sign that the world is beginning to realise how important healthy oceans are.

A flurry of excited media reports followed the announcement that an agreement had been reached and unusually, for 24 hours the plight of the oceans dominated the news.

The Treaty has 4 main objectives:

– to establish a legal framework to ease the creation of marine protected areas in the high seas;

– to agree rules and standards for environmental impact assessments for a range of potentially damaging activities;

– to help developing countries play a greater part in marine science and conservation (known as capacity building)

– to bring a fairer distribution between richer and poorer nations of the benefits from the commercialisation of substances derived from marine genetic resources (from sponges, bacteria, seaweeds, corals etc.).

News reports described how the Treaty was almost 20 years in the making, that delegates from 193 countries debated way past the deadline to reach agreement, and that it will enable the global community to fulfill a pledge to protect 30 percent of the ocean by 2030 (made by 190 countries at the Biodiversity Summit in Montreal in December 2022). Newspaper headlines applauded the event as ‘historic’ and ‘game-changing’.

What exactly are the high seas and why do they matter?

The high seas are ocean waters which lie beyond the marine boundaries of coastal states, making up 64 percent of the global ocean. As the ocean makes all life on Earth possible, no matter where you are or what you are, safeguarding the high seas is crucial. Together with seaweeds and sea grasses, marine phytoplanktonphytoplankton Microscopic marine plants, usually algae. These microscopic plants are at the base of the food chain, and are the food of zooplankton (microscopic marine animals). Note: phytoplankton are microscopic plants, and zooplankton are microscopic animals. draw in over 100 million tons of carbon dioxide from the atmosphere each day and they generate 50–80 per cent of Earth’s oxygen. Since 1955 the ocean has also absorbed over 90 per cent of the excess heat trapped by greenhouse gas emissions. Up to 80 per cent of all life on Earth is in the ocean and scientists estimate that 90 per cent of marine species have yet to be classified. The ocean feeds all marine wildlife (and many land-living animals) and millions of people. Also, roughly two hundred million people are directly or indirectly employed in fisheries, sustaining thousands of coastal communities worldwide.

Being a stateless region, the high seas are especially vulnerable to uncontrolled and damaging industries, such as commercial fishing and deep-sea mining, and they are increasingly weakened by the effects of a changing climate. Greater protections for the high seas have been lacking for decades. But international co-operation and law-making is an agonisingly slow process, and by the time it happens it’s often too little, too late.

The high seas are stateless, but they’re not lawless. The UN Law of the Sea lays down rules on high seas’ activities such as shipping, piracy, cable laying – and conservation. For example, Article 118 requires states to: “cooperate with each other in the conservation and management of living resources in the areas of the high seas”.

Therefore, all that’s expected from the High Seas Treaty should have been happening ever since the UN Law of the Sea came into force in 1994. As an extension to the Law of the Sea, it should provide a practicable mechanism for implementing some of the provisions for marine conservation which, until recently, have been mostly overlooked.

So the arrival of this new Treaty is very good news. But, what lies beyond the jubilant headlines? The best way to find out was to read the draft Treaty text.

Things begin well. The preamble of the draft recognises, “the need to address, in a coherent and cooperative manner, biodiversity loss and degradation of ecosystems of the ocean, due to, in particular, climate change impacts on marine ecosystems, such as warming and ocean deoxygenation, as well as ocean acidification, pollution, including plastic pollution, and unsustainable use”,

and the general principles which parties have agreed to follow include:

– the principle of equity, and the fair and equitable sharing of benefits

– to take the precautionary and an ecosystem approachesecosystem approach An ecosystem-based approach to management represents a new and more strategic way of thinking. It puts the emphasis on a management regime that maintains the health of ecosystems alongside appropriate human use of the marine environment, for the benefit of current and future generations. This requires setting clear environmental objectives both at the general and specific level, basing management of the marine environment on the principles of sustainable development, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement. Ref, DEFRA, Safeguarding Our Seas, section 1.17 (2002)

– the principle of the common heritage of humankind

– to use of relevant traditional knowledge of indigenous peoples and local communities

– full recognition of the special circumstances of small island developing States and of least developed countries

Delegates had hammered out environmental impact assessment rules and standards, and opted for decisions to be made by a two-thirds majority vote if consensus can’t be reached – to prevent one or two countries blocking stricter environmental protections. Unlike its ‘parent’, the Law of the Sea, the High Seas Treaty will have a Conference of Parties (COP) as a decision-making body to convene at regular intervals (possibly biennially) and a Scientific and Technical Body of experts to advise its members.

So far so good. But is the high seas’ future really as rosy as it sounds?

Flaws and pitfalls

Presently, high seas activities are controlled by a group of unconnected organisations: the International Sea Bed Authority (ISA) to licence undersea mining, the International Maritime Organization (IMO) to regulate shipping, and 18 Regional Fisheries Management Organizations (RFMOs) to manage commercial fishing.

How to dovetail these long established agencies into a new legal framework was a potential treaty breaker. The agencies claimed that to be brought under the Treaty’s control would undermine their authority and they must retain their regulatory mandates. They argued that the High Seas Treaty mustn’t be able to interfere with their operations. In fact, going by the track records of the International Seabed Authority and Regional Fisheries Management Organisations, that’s exactly what it does need to do.

Many observers maintain the International Seabed Authority has been captured by industry and that its interests are far from protecting the seabed.

“The ISA has a mandate to protect the seabed and to regulate any future deep sea mining industry, yet it seems they are only focused on the launch of a new destructive global extractive industry. The conservation aspect of their mandate has been all but ignored. This is yet another crucial reason that it is essential that deep-sea mining is not allowed: the ISA is not fit for purpose”. Greenpeace USA Senior Oceans Campaigner Arlo Hemphill, April 2022.

And then, there’s fishing. From the outset, fisheries were bound to be a contentious issue, played out in a familiar head-to-head between the conservation camp wanting to protect nature and the fishing industry wanting to exploit it. The industry argued that RFMOs ‘have been doing great work for decades in terms of fisheries management and environmental protection.’ Europêche (lobby group for the European fishing sector).

In truth, the effectiveness of RFMOs varies a great deal. Evidence shows that some have overseen the destruction of undersea habitats and over-exploitation of many commercial fish species (in the case of Atlantic bluefin tuna, to near extinction). For example, only in February this year the South Pacific Regional Fisheries Management Organisation (SPRFMO) permitted deep-sea trawling to continue, which could destroy 30 per cent of vulnerable marine ecosystems in the region.

Management decisions which ignore scientific advice on marine protection and routinely prioritise exploitation of the sea should be overruled by a higher authority. Better still, would be to scrap today’s single-sector and profit-driven management system altogether and replace it with one which strives to protect the ocean and marine life, instead of over-exploiting it without heed for the damage caused.

For now though we are stuck with a fragmented regime, made up of die-hard bodies which it appears, refused to budge from their positions during the treaty negotiations. As a result, in order to save the Treaty, two of the greatest threats to high seas biodiversity, seabed mining and fishing are excluded from its scope and the ISA and RFMOs won’t have to carry out environmental impact assessments before green-lighting commercial exploitation.

There’s only passing mention in the text about the International Seabed Authority, leaving a vague picture of the issue of deep-sea mining. Regarding fishing though, the Treaty text is as clear as day:

“The provisions shall not apply to: (a) Fishing regulated under relevant international law and fishing-related activities; or (b) Fish or other living marine resources known to have been taken in fishing and fishing-related activities from areas beyond national jurisdiction”, Article 8 (2)

So according to Article 8, we have a Treaty to protect biodiversity in the high seas that doesn’t include fish, fishing or by-catch. Expedient it may be, but it’s hardly logical.

Clearly, fish are crucial component of marine biodiversity. To omit fish, fishing and deep-sea mining from a law passed to safeguard marine biodiversity has been a major blow to many involved in the negotiations. However, the thinking is that it’s better to have a flawed agreement than none at all. And, that the exclusions may be brought within the treaty’s parameters in the future. If that is so, the question is: when?

Exclusions aside, probably the greatest potential pitfall for the fledgling Treaty is delay. Before it can come into force and do anything for the ocean it has to be formally adopted and ratified by at least 60 countries. Considering there should have been a strategy to properly protect the high seas in place 30 years ago, governments need to get on with adoption and ratification within months, and not years.

Agreeing a High Seas Treaty to protect biodiversity is indeed a great achievement but without wishing to put a dampener on it, it’s akin to passing an important milestone with a long way yet to go. Perhaps the greatest achievement is that it exists at all. In Greenpeace’s Laura Meller’s words:

“We praise countries for seeking compromises, putting aside differences and delivering a Treaty that will let us protect the oceans…..a sign that in a divided world, protecting nature and people can triumph over geopolitics”.

Here’s hoping though that the High Seas Treaty doesn’t remain another international pact of good intention which changes little.

Deb Wright