The High Seas Treaty: Key provisions, and the challenges it faces

The nations of the world have agreed on a framework for the conservation and sustainable use of resources in the open oceans that lie beyond national territorial jurisdictions. This is why the agreement is a critical step forward in saving the planet — and also why it is important to temper expectations.

A sea lion off Isabela Island in the Galápagos Islands. Climate change is ravaging the natural laboratory that inspired Darwin. (Image source: The New York Times)

Written by: Amitabh Sinha

7 min readPuneMar 24, 2023 07:07 AM IST First published on: Mar 23, 2023 at 07:05 AM IST

Two weeks ago, negotiators from almost every country in the world finalised a new global treaty meant for the conservation and sustainable use of biological resources in the high seas. In terms of its significance and impact, this treaty is being compared to the 2015 Paris Agreement on climate change. High seas are open ocean areas that are outside the jurisdiction of any country — the reason why the treaty is commonly known as the agreement on “biodiversity beyond national jurisdictions”, or BBNJ.

Once the treaty becomes international law after ratification by member countries, it will regulate all human activities in the high seas with the objective of ensuring that ocean resources, including biodiversity, are utilised in a sustainable manner, and their benefits are shared equitably among countries.

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Oceans are an integral part of the global climate cycle, and perform a range of ecological services including absorption of carbon dioxide and excess heat, because of which this treaty is also being considered as a landmark in the efforts to keep the planet habitable.

The laws of the seas

The high seas comprise 64 per cent of the ocean surface, and about 43 per cent of the Earth. These areas are home to about 2.2 million marine species and up to a trillion different kinds of microorganisms, according to the Deep Ocean Stewardship Initiative (DOSI), a network of global experts on oceans.

A number of regional, multilateral and global legal frameworks exist to govern the activities in the oceans, the most important of which is the United Nations Convention on the Laws of the Sea (UNCLOS), a 1982 agreement that has near-universal acceptance.

Among other things, UNCLOS defined the rights and duties of countries in the oceans, the extent of ocean areas over which countries could claim sovereignty, and the legal status of marine resources. It also specified a set of general rules for a range of activities in the oceans including navigation, scientific research, and deep-sea mining.

The treaty established exclusive economic zones (EEZ), ocean areas up to 200 nautical miles (370 km) from the coastline, where a country would have exclusive rights over all economic resources such as fish, oil, minerals, and gas. The high seas are the areas beyond the EEZ of any country.

The UNCLOS came into being much before climate change and biodiversity became major global concerns. Though it asks countries to protect the ocean ecology and conserve its resources, it does not provide the specific mechanisms or processes to do so. Climate change is already influencing, and is being influenced by, ocean systems, and is exacerbating the pressures on marine biodiversity from unregulated human activities. It is these specific challenges — a combination of climate change, biodiversity, and pollution — that the High Seas Treaty seeks to address.

The High Seas Treaty will work as an implementation agreement under the UNCLOS, much like the Paris Agreement works under the UN Framework Convention on Climate Change (UNFCCC).

Key provisions of Treaty

The High Seas Treaty has four main objectives:

* Demarcation of marine protected areas (MPAs), rather like there are protected forests or wildlife areas;

* Sustainable use of marine genetic resources and equitable sharing of benefits arising from them;

* Initiation of the practice of environmental impact assessments for all major activities in the oceans; and

* Capacity building and technology transfer.

MARINE-PROTECTED AREAS: MPAs are where ocean systems, including biodiversity, are under stress, either due to human activities or climate change. These can be called the national parks or wildlife reserves of the oceans. Activities in these areas will be highly regulated, and conservation efforts similar to what happens in forest or wildlife zones, will be undertaken. Only about 1.44 per cent of high seas are currently protected, according to the International Union for Conservation of Nature (IUCN).

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In December last year, at the meeting of the Convention on Biodiversity (CBD) in Montreal, Canada, countries had agreed to put at least 30 per cent of degraded coastal and marine ecosystems under effective restoration by 2030. MPAs can become an important vehicle to achieve that goal.

MARINE GENETIC RESOURCES: Oceans host very diverse life forms, many of which can be useful for human beings in areas like drug development. Genetic information from these organisms is already being extracted, and their benefits are being investigated. The treaty seeks to ensure that any benefits arising out of such efforts, including monetary gains, are free from strong intellectual property rights controls, and are equitably shared amongst all. The knowledge generated from such expeditions are also supposed to remain openly accessible to all.

ENVIRONMENT IMPACT ASSESSMENTS: The high seas are international waters that are open for use by all countries. Under the provisions of the new treaty, commercial or other activities that can have significant impact on the marine ecosystem, or can cause large-scale pollution in the oceans, would require an environmental impact assessment to be done, and the results of this exercise have to be shared with the international community.

CAPACITY BUILDING AND TECHNOLOGY TRANSFER: The treaty lays a lot of emphasis on this, mainly because a large number of countries, especially small island states and landlocked nations, do not have the resources or the expertise to meaningfully participate in the conservation efforts, or to take benefits from the useful exploitation of marine resources. At the same time, the obligations put on them by the Treaty, to carry out environmental impact assessments for example, can be an additional burden.

Difficult road ahead

The treaty is the result of more than 20 years of protracted negotiations. The details of all the major contentious provisions, including environmental impact assessments, sharing of benefits from genetic resources, and mobilisation of funds for conservation activities, are still to be worked out. Many issues remain unaddressed, including the mechanisms for policing the protected areas, the fate of the projects that are assessed to be heavily polluting, and the resolution of disputes.

The process of ratification is not expected to be easy. It took UNCLOS 12 years to become international law because the necessary number of ratifications was not reached. The Kyoto Protocol, the precursor to the Paris Agreement, also took eight years to come into effect.